ling Room Oaly UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ii Kooin Only THE ENCYCLOPEDIA OF PLEADING AND PRACTICE UNDER THE CODES AND PRACTICE ACTS, AT COMMON LAW, IN EQUITY AND IN CRIMINAL CASES. COMPILED UNDER THE EDITORIAL SUPERVISION OF WILLIAM M. McKINNEY. VOL. I . NORTHPORT, LONG ISLAND, N. Y. : EDWARD THOMPSON COMPANY, LAW PUBLISHERS, 1895. 4436 3 r Copyright, 1894, HV EDWARD THOMPSON Co. MADE AT NORTHPORT, L. I., N. Y. ROBERT DRUMMOND, J. M. DUNN. Printer. Bindtr. \9 For 1\c*M*ff P^T* Only s PREFACE. THIS work was conceived and its execution planned by Mr. JAMES COCKCROFT, to whom also belongs the credit of project ing and carrying to a splendid consummation the master legal work of the nineteenth century, The American aud English Encyclo- pedia of Law. The practicality of treating the whole body of substantive law in the form of an encyclopaedia has already been demon- strated. It has been shown beyond doubt that there is great advantage and economy to be derived from having in one series of books practically all the law of general application. The present work is an attempt to do for pleading and practice what its prototype has done for substantive law. The difficulties of the work were recognized, but the}' have not proved insurmountable. Pleading is generally recognized to be a subject adaptable for comprehensive treatment which will be useful in all the states. That part of procedure which is commonly called practice is not so uniform, but the lack of uniformity does not go nearly to the Uj extent which is popularly supposed. There have been a great many instances where one state has adopted the legislation or followed the methods of another. Thus, the New York Code of Civil Procedure is the fountain-head of the practice of those states which have adopted the reform procedure. The common- law and chancery systems of England, wherever they still prevail in this country, have been modified by statutes and practice acts which have passed, often with but slight changes, from one state PREFACE. to another. Criminal pleading and practice vary in details, but there is so much similarity in the different jurisdictions that authorities from a score or more of states are applicable in each of them. It is, therefore, believed that the custom of writing books on practice for use in one state only is not the outcome of necessity, and that, if valuable and useful material is not to be sacrificed, the treatment must be comprehensive. One of the chief duties of an editor of an encyclopaedia is the selection of titles for articles. In this work two considerations have been kept in mind ; first, the title should be one which would naturally occur to the investigator seeking the information contained in the matter which it heads ; second, the usual large titles should be broken up into numerous smaller titles, in order that the treatment may be more thorough and to conform to the general scheme of the work. No pretense is made to state that part of practice (if such there be) which is not laid down in the books. Contributors were not expected to advise, or to tell what they knew as individuals. They have been directed to compile their contributions entirely from the authorities, and if merit is found in their work, it will be chiefly because it is a good compilation of such materials. The general style of contributions has been kept as uniform as is possible where so many different authors are engaged. Noth- ing has been so much insisted upon from contributors as that their articles shall completely exhaust the subjects treated of, and that all the decisions in point shall be collected and used. It is clearly recognized that the chief value of a law book of this kind lies, not in the cogitations of the numerous writers, but in the in- telligence, completeness, and accuracy with which they have ar- ranged and digested the immense mass of decisions, statutes and rules that govern pleading and practice. WILLIAM M. MCKINNEY. NORTHPORT, N. Y., Feb. 1895. iv TABLE OF TITLES. ABATEMENT IN PLEADING F. A. Card. i ABBREVIATIONS 6". R. Perry 42 ABDUCTION 50 ABIDING THE EVENT F. A. Card. 53 ABORTION 62 ACCESSORIES AND THE LIKE 66 ACCORD AND SATISFACTION W. L. Crawford 73 ACCOUNTS AND ACCOUNTING W. L. Crawford 83 ACTIONS W. L. Crawford 108 ADDITIONAL ALLOWANCE OF COSTS .... Wm. Seton Gordon 211 ADDRESS 234 ADJOURNMENTS Wm. P. Aiken 238 ADMIRALTY Edward G. Benedict 249 ADULTERY 305 AFFIDAVITS W. Calvin Chesnut. 309 AFFIDAVITS OF MERITS F. A. Card 338 AFFIRMATION Ward B. Coe 377 AFFRAY 382 AGREED CASE William A. McQuaid. . . . 384 ALIMONY Ward B. Coe 407 AMENDMENTS Charles C. Moore 458 AMOUNT IN CONTROVERSY Richard F. Kimball. 702 ANOTHER SUIT PENDING Charles C. Moore 750 ANSWERS IN CODE PLEADING W. L. Crawford 777 ANSWERS IN EQUITY PLEADING. ..W. A. Martin and S. R. Perry 863 APPEAL BONDS Wm. P. Aiken 963 v ABATEMENT OF ACTIONS. By Absence of Jurisdiction, see JURISDICTION. By Pendency of Another Action, see ANOTHER SUIT PENDING. By Death of Parties, see DEA TH. By Defect of Parties, see PARTIES. By Dissolution or Consolidation of Corporations, see CORPORA TIONS* Revival of Actions, see REV IVOR. ABATEMENT IN PLEADING. By F. A. CARD. I. DEFINITION, i. II. KINDS OF PLEAS IN ABATEMENT, 3. 1. Generally, 3. 2. Pleas to the Jurisdiction, 3. 3. Infancy, 9. 4. Coverture, 9. 5. Capacity to Sue, 10. 6. Real Party in Interest, n. 7. Misnomer, 12. 8. Misjoinder, 13. 9. Non-Joinder, 14., 10. Privilege and Non-Tenure, 19. 11. Defects in Process and Proceedings, 19. 12. Variance, 20. 13. Service, 20. 14. Action Premature, 22. 15. Another Action Pending, 23. III. REQUISITES AND CONSTRUCTION, 23. IV. PRAYER, SIGNATURE, AND VERIFICATION, 27. V. JUDGMENT AND TRIAL, 30. VI. WAIVER OF PLEA, 32. VII. PLEAS Puis DARREIN CONTINUANCE, 36. VIII. REPLICATION, ETC., 38. IX. IN EQUITY, 40- I. DEFINITION. Pleas in abatement are those which set up matter tending to defeat or suspend the suit or proceeding in which they are interposed, but which do not debar the plaintiff from recommencing at some other time or in some other way. i Enc|c. PI. & Pr. i. I Definition. ABATEMENT IN PLEADING. Definition. They do not Go to the Merits of the claim or cause of action, but rather to the procedure, and are thus distinguished from pleas in bar, which are addressed to the merits and tend to show that the plain- tiff cannot maintain any action at any time. 1 Must Give Plaintiff a Better Writ. Pleas in abatement also differ from pleas in bar, not only in that they do not go to the merits, but also that they must not only point out the plaintiff's error, but must show him how it may be corrected and furnish him with materials for avoiding the same mistake in another suit in regard to the same cause of action, or, in technical language, must give the plaintiff a better writ.' 1 The Distinction between Pleas in Abatement and in Bar is recognized in equity as well as at law. 3 It is a clear, distinct, and substantial distinction, and is recognized and enforced at the present time and notwithstanding changes in the form or manner of pleading. 4 1. Chittyon Pleading (i6th Am. ed.), p. 462; 3 Blackstone's Cora. 301, 302; Co. Litt. 134 b, 277 a; Stephen on Pleading, p. 47; Moore v. Sargent, 112 Ind. 487. Fleas are divided into Two General Classes pleas in abatement and pleas in bar. A plea in abatement is denned to be a plea that, without disputing the justice of the plaintiff's claim, objects to the place, mode, or time of assert- ing it, and requires that therefore and fro kac vice judgment be given for the defendant, leaving it open to renew the suit in another place or form or at an- other time ; while to the second class belong all those pleas having for their object the defeating of the plaintiff's claim. Hence a plea in bar of the ac- tion may be denned as one which shows some ground for barring or de- feating the action, and makes prayer to that effect. Pitt's Sons Mfg. Co. v. Commercial Nat. Bank, 121 111. 587. 2. Chitty on Pleading (i6th Am. ed.), p. 463. 3. InEquity. Pleas are of two sorts, in abatement and in bar. The former question the propriety of the remedy or legal sufficiency of the process rather than deny the cause of action; the latter dispute the very cause of action itself. Beames PI. in Eq. 59. All declinatory and dilatory pleas in equity are properly pleas, if not in abatement, at least in the nature of pleas in abatement, and there- fore in general the objections founded thereon must be taken ante litem con- testatam by plea, and are not avail- able by way of answer or at the hearing. Story Eq. PL sec. 708. 4. Distinction Still Exists. Although the Code of loiua has abolished all technical forms of actions and plead- ings, this does not have the effect of abolishing pleas in abatement and making all pleas to be in bar, and a de- fendant may still interpose the same pleas in abatement as formerly, as, to the jurisdiction, another action pend- ing, etc., as at common law. Rawson z>. Guiberson, 6 Iowa 507. An answer is bad on demurrer which is pleaded in bar to the whole com- plaint, but which sets up facts which only bar part of the claim alleged in the complaint, and notwithstanding which the plaintiff is entitled to some relief. Orb v. Coapstick (Ind. 1894), 36 N. E. Rep. 278; Walter A. Wood Mowing Mach., etc., Co. v. Niehaus (Ind. App. 1894), 35 N. E. Rep. 1112. Denial of Corporate Existence. Where a corporation is plaintiff, and sues on a contract, a denial in the answer of the corporate existence of the plaintiff will be considered as a plea in bar unless it be expressly pleaded in abatement. Such a denial involves more than the mere capacity of the plaintiff to sue ; it goes to the merits of the action, and may be pleaded either in bar or in abatement. Oregonian R. Co. v. Ore- gon, etc., Co., 10 Sawy. (U. S.) 476. Absence of Interest in Plaintiff. An answer which states facts showing that the plaintiff had no interest in the subject-matter of the action at the time of its commencement, and that some other person named was at the time the real party in interest in such suit, is in absolute bar of the suit and not in abatement of it. State v. Ruhlman, Kinds of Pleas. ABATEMENT IN PLEADING. Jurisdiction. II. KINDS OF PLEAS IN ABATEMENT 1. Generally. Pleas in abate- ment were originally divided into three kinds, viz. : to the juris- diction of the court; to the disability of the parties plaintiff or de- fendant ; and in abatement of the writ or declaration. 1 Order of Pleading. These pleas were required to be pleaded in their proper order, viz. : 1st, to the jurisdiction ; 2d, to the disability of the parties; 3d, to the declaration or count ; and 4th, to the writ. 2 The Usual Pleas to the Disability of a plaintiff were that the plaintiff was a fictitious person, died before suit brought, an alien enemy an infant, insane or under guardianship, married and her husband not a party, and that plaintiff had not the representative capacity in which he sued. The usual pleas to the disability of the defendant were coverture, infancy, privilege, etc. 3 The Usual Pleas to the Action of the Writ were that the action was misconceived, that the action was prematurely brought, and that another action was pending. 4 2. Pleas to the Jurisdiction Denial of Jurisdiction to Particular Court. The pleas to the jurisdiction of the court which can be taken as, and which are considered to be, pleas in abatement, are those which, while admitting jurisdiction in some court, deny it to the particular court in which the suit is brought for some reason alleged ; for if no court has jurisdiction, the objection goes in bar and not in abatement. 5 in Ind. 17; Pixley v. Van Nostern, 100 Ind. 34; Morningstar v. Cunningham, no Ind. 328, 59 Am. Rep. 211 Matter of Defence which Goes to the Merits of the action cannot be pleaded in abatement. Peck v. Barnum, 24 Vt. 75- A Plea for Want of Proper Parties is a plea in bar, and goes to the whole bill. Howth v. Owens, 29 Fed. Rep. 722. 1. i Saund. on Pleading, 318 n. ; I Chitty on Pleading, pp. 456-468; Story's Equity Pleading, sees. 705, 708; 3 Blackstone's Com., pp. 301-303; Gould's Pleading (5th ed.), p. 211. Pleas in abatement of the writ were also sub- divided into those to its form and those to its action. See authorities supra. 2. Chitty on Pleading, pp. 456-469. This order could not he reversed, for each plea in its order was held to admit the one prior in such order of pleading. Chitty, pp. 456-469. 3. Anderson's Law Diet. Objections to the disability of the parties seem also to have been taken under the form of objections to the de- claration and to the form of the writ. Chitty on Pleadings, pp. 456-469. 4. Anderson's Law Diet.; Chitty on Pleadings (i6th Am. ed.), pp. 456-469; Southard v. Hill, 44 Me. 92, 69 Am. Dec. 85. And ordinarily all writs were recited in the count or declaration, and objections were raised to the declara- tion and to the form of the writ. The usual objections so taken, in addition to the disability of parties, were va- riance between the writ and declara- tion, defect in the process, defect in the return, non-joinder, misjoinder, and misnomer of a party. See authori- ties cited supra. Modern Practice. In modern practice pleas in abatement are usually con- sidered under the heads of the various objections for which they are inter- posed, and they are so considered in this article. 5. When no Court has Jurisdiction the objection can be taken advantage cf under the general issue, and cannot be raised by plea in abatement. A plea in abatement in such a case is bad, for it cannot give a better writ, viz., name a court of the county hav- ing jurisdiction. Maisonnaise v. Keat- ing, 2 Gall. (U. S.) 344 ; Rex v. John- son, 6 East 599 ; Mostyn -v. Fabrigas, Cowp. 172 ; Otis v. Wakeman, i Hill (N. Y.) 604 ; Rea v. Hayden, 3 Mass. 24; Lawrence v. Smith, 5 Mass. 362; Kinds of Pleas. ABATEMENT IN PLEADING. Jurisdiction. Objection must be Taken by Plea or Demurrer. The objection in abate- ment that a court has no jurisdiction must be taken by a plea in abatement, unless lack of jurisdiction appears on the face of the record, when it may be taken by demurrer. 1 This rule applies to the question of the citizenship of parties as determining the juris- diction of a court of the United States.* And it has been held to Stewart v. Potomac Ferry Co., 12 Fed. Rep. 296. Plea in Abatement Substantially a Plea in Bar. An answer setting up matter showing that the court has no juris- diction of the subject-matter of the action, although it be in form a plea in abatement, is not within the rule established by the statute of Massa- chusetts that an appeal cannot be taken from a judgment on a plea in abate- ment, because it is in substance a plea in bar. Selin v. Connecticut River Lumber Co., 150 Mass. 560. 1. Meyer v. Smith (Tex. Civ. App. 1893), 21 S. W. Rep. 995 ; Ludwick v. Beckamire, 15 Ind. 198 ; Waterman v. Tuttle, 18 111. 292 ; Bishop v. Vose, 27 Conn, i ; McLean v. McDugald, 8 Jones (N. Car.) 85 ; Killian v. Full- bright, 3 Ired. (N. Car.) 9 ; Wood v. Mann, I Sumn. (U. S.) 578 ; Smith v. Kernochen, 7 How. (U. S.) 198 ; Rowland v. Veale, Cowp. 20 ; Wells v. Hughes, 89 Va. 543 ; Slator v. Trostel (Tex. Civ. App. 1892), 21 S. W. Rep. 285 ; Duke v. Miller, 15 Hun (N. Y.) 356 ; Coe v. Raymond, 22 Hun (N. Y.) 461 ; Papfinger v. Yutte, 102 N. Y. 38; McLean v. St. Paul, etc., R. Co., 9 Civ. Pro. Rep. (N. Y.) 394; Hamburger v. Baker, 35 Hun (N. Y.) 455 ; Curtis v. Howard (Fla., 1894), 14 So. Rep. 812 ; Hurlburt v. Palmer (Neb., 1894), 57 N. W. Rep. 1019; Southern Pac. R. Co. v. Denton, 146 U. S. 202 ; Day v. Henry, 104 Ind. 324 ; Shephard v. Graves, 14 How. (U. S.) 505 ; Knappf. Knapp, 59 Fed. Rep. 641 ; Bishop v. Silver Lake Min. Co., 62 N. H. 455 ; Varner v. West, i Woods (U. S.) 493 ; Jones v. League, 18 How. (U. S.) 76 ; D'Wolf v. Rabaud, i Pet. (U. S.) 476 ; Evans v. Daven- port, 4 McLean (U. S.) 574. Service on Corporation. Where a dec- laration served on an agent of a for- eign corporation does not negative the existence of a cause of action aris- ing in the state, a defence that such cause of action arose outside of the state must be presented by plea and not by a motion to quash, so that the decision of the court may be reviewed by appeal in the ordinary way. Max- well v. Speed, 60 Mich. 36. Service Defective. An answer that defendant being a foreign corporation ought not to be held to answer the plaintiff's writ because proper service has not been made on it to give the court jurisdiction, is a plea in abate- ment. Young v. Providence, etc., Steamship Co., 150 Mass. 550; 28 Am. & Eng. Corp. Cas. 603. Fraud in Obtaining Jurisdiction. Where jurisdiction depends on the amount in controversy, this is deter- mined by the petition ; and if items are fraudulently inserted therein for the purpose of conferring jurisdiction, the defendant must raise the question by pleading such fact in abatement. Dwyer v. Bassett, 63 Tex. 274 ; Tid- ball v. Eichoff, 66 Tex. 58. False Return. Where an alias sum- mons which is necessary to confer jurisdiction is founded on a false re- turn of the sheriff, a plea in abatement is the proper way of quashing the writ, notwithstanding the sheriff's re- turn. Carlisle v. Cowan, 85 Tenn. 165. Too Late after Mandate to Lower Court. After a mandate has gone down from the United States Supreme Court to the court below to enforce its decree, it is then too late for the defendant to file a plea in abatement for want of jurisdiction, and he will not be al- lowed to do so. Whyte v. Gibbs, 20 How. (U. S.) 541. 2. Smith v. Kernochen, 7 How. (U. S.) 198 ; Wood v. Mann, i Sumn. (U. S.) 578 ; D'Wolf v. Rabaud, i Pet. (U. S.) 476 ; Jones v. League, 18 How. (U. S.) 76 ; Mexican Cent. R. Co. v. Pink- ney, 149 U. S. 194 ; Evans v. Daven- port, 4 McLean (U. S.) 574. Federal Courts do not Follow State Prac- tice. In the federal courts jurisdic- tional questions must be raised by a special plea to the jurisdiction. The practice of a state court permitting such questions to be raised under a general denial cannot prevail in a Kinds of Pleas. ABATEMENT IN PLEADING. Jurisdiction. apply, and was enforced, notwithstanding a provision of statute saving objections to the jurisdiction, although not taken by demurrer or answer. 1 \nMicJiigan the objection has been allowed to be set up in a notice of defence under the general issue,' 2 and in Illinois it seems it may be raised by motion. 3 After the deter- mination of a demurrer it has been held too late to so plead in abatement, 4 but the contrary is also held. 5 If the question of jurisdiction which could be raised by plea in abatement is not properly raised, the plaintiff may obtain judgment notwithstand- ing such want of jurisdiction. 6 federal court sitting in such state so as to permit evidence as to the citizen- ship of the parties to be given under such a denial. But if such a question exists, an issue must be directed to be made by the pleadings in order to de- termine it. Imperial Refining Co. v. Wyman, 38 Fed. Rep % 574 ; 6 Ry. & Corp. L. J. 94. Amendment in Court's Discretion. It is within the discretion of a federal court to allow a plea in bar to be withdrawn, and a plea in abatement denying jurisdiction on account of citizenship to be filed. Eberly v. Moore, 24 How. (U. S.) 147. Where on the trial plaintiff gave evidence which the defendant claimed tended to show he was not a citizen of the distfict in which the suit was brought, and the court refused to allow defendant to file a plea in abate- ment on that ground, and thus raise the question of citizenship, held, was a question resting in the discretion of the lower court, and with its action thereon the supreme court would not interfere. Mexican Cent. R. Co. v. Pinkney, 149 U. S. 194. 1. Statutory Provisions Saving Objec- tions to Jurisdiction. The provision of the New York Code saving objections to the jurisdiction, although not taken by demurrer or answer, applies only to objections showing that no court has jurisdiction, and going to the power of the court. It does not save objections formerly properly raised by a plea in abatement to the jurisdiction. Such objections are waived unless taken by demurrer or answer. De Bussierre v. Holliday. 4 Abb. N. Cas. (N. Y.) in ; 55 How. Pr. (N. Y.) 210 ; Papfinger -v. Yutte, 102 N. Y. 38 ; Donnelly v. Woalsey (Supreme Ct.), 38 N. Y. St. Rep. 39; Hal- brook v. Baker, 16 Hun (N. Y.) 176 ; Gray v. Ryle, 50 N. Y. Super. Ct. 198 ; Patten -v. Neal, 62 How. Pr. (Co. Ct. N. Y.) 158 ; Burling v. Free- man, 2 Hun (N. Y.) 661 ; Robinson v. Ocean Steam Nav. Co. (Super. Ct.), 16 N.Y. St. Rep.5S3;Heenanz/. New York, etc., R. Co., 6 Civ. Pro. Rep. (Co. Ct. N. Y.) 348; i How. Pr. N. S. (N. Y.) 53 ; Mosselman v. Caen, 21 How. Pr.(N. Y. Supreme Ct.) 248; 34 Barb. (N. Y.) 66. 2. In Notice of Defence. Although a plea in abatement would be the better practice, yet an objection to jurisdic- tion, on the ground that it was ob- tained by ordering goods merely for the purpose of attaching them, may be set up in a notice of defence under the general issue. Copas v. Anglo-Amer- ican Provision Co., 73 Mich. 541. 3. By Motion. The question whether a party is entitled to exemption from the service of process may be raised by plea in abatement, although it is frequently presented by motion. Gregg v. Sumner, 21 111. App. no. 4. After Decision on Demurrer. It is too late to plead to the jurisdiction after appearance and the determination of an issue of law, viz., on demurrer. Slanter v. Hallowell, 90 Ind. 286. 5. By demurring to a declaration for want of jurisdiction, a defendant does not waive his right to plead in abatement for want of jurisdiction ; and where the defendant did demur therefor, and his demurrer was sus- tained, and the plaintiff filed an amend- ed declaration on its face showing jurisdiction, the defendant may plead in abatement thereto facts showing want of jurisdiction, or may traverse the facts alleged by plaintiff to show jurisdiction. Donaldson v. Hazen, Hempst. (U. S.) 425. 6. Waiver. Where there is no plea to the jurisdiction, judgment may be given against a defendant who is not a resident of the county, as well as against a codefendant who is a resi- Kinds of Pleas. ABATEMENT IN PLEADING. Jurisdiction. Pleas must be Clear, Distinct, and Positive. Such pleas must clearly and distinctly show want of jurisdiction. 1 They must be certain to every intent.* They must exclude every contrary inference, and negative all statutory exceptions. 3 They should show another court having jurisdiction of the matter in litigation. 4 But a plea dent, in an action on time checks for labor performed out of the county. San Antonio, etc., R. Co. v. Cockrill, 72 Tex. 613. 1. Must be Certain and Clear. A plea in abatement to the jurisdiction of a superior court must clearly and distinctly aver a want of jurisdiction, as it is presumed until the contrary is shown. Diblee v. Davison, 25 111. 486. Where there are four defendants, and a plea to the jurisdiction alleges only two of them are residents of the county where the proceedings are had, it is bad for not stating the residence of the other two. Lester v. Stevens, 29 111. 155. 2. Certain to Every Intent. Pleas in abatement to the jurisdiction must be certain ; hence, where a plea to the jurisdiction alleged "that the defend- ant was a resident of the state of New York instead of the state of Michigan, as alleged in the declara- tion," held, that the plea was bad, for it should have alleged that the de- fendant was a citizen of New York (not merely a resident), as it is citizen- ship, not residence, which determines the jurisdiction of United States courts, and a person may be a resident of one state while a citizen of another. Evans v. Davenport, 4 McLean (U. S.) 276. 3. Must Negative Inferences and Ex- ceptions. A plea in abatement to the jurisdiction negativing several statu- tory exceptions which would other- wise have conferred jurisdiction, but failing to specifically deny the exist- ence of them all, is fatally defective on exception taken thereto. Burchard v. Record (Tex., 1891), 17 S. W. Rep. 241. In a suit for specific performance df a contract to convey realty, a plea in abatement to the jurisdiction, that the same is not laid in the county of de- fendant's residence, is fatally defective where it does not negative the exist- ence of any statutory exceptions to the rule requiring actions to be brought in such county. Carvin v, Hill, 83 Tex. 73. Where a plea in abatement to an at- tachment does not allege that the de- fendant resides in the county in which the suit is instituted, and hence the ordinary process of law could have been served upon him there, but merely alleges that the defendant is a citizen of the state, it is bad on de- murrer. James v. Dowell, 15 Miss. 333- Where to a suit on a judgment of the Supreme Court held at Albany, brought against the defendant in the Superior Court of New York, the de- fendant pleaded in abatement to the jurisdiction of the court, "that the cause pf action accrued in the county of Albany," it was held bad for not averring that the record of the judg- ment was filed in Albany. Kelly v. Mullany, 2 Hall (N. Y.) 205. Affinity of Justice Signing Writ. Where a plea in abatement alleged "that James Hickox, the justice of the peace who signed the writ and took security by way of recognizance for the costs of prosecution in said suit, was at the time of signing said writ and taking said security by way of recognizance for the costs of prose- cution as justice of the peace as afore- said, and still is, related to said de- fendant within the fourth degree of affinity," it was held bad because not containing an allegation (except by way of recital) that the writ was signed by James Hickox, in not showing that the writ was not other- wise signed atlhefirnt of service there- of than by James Hickox, and in not alleging the particular relationship which constituted the affinity. Landon v. Roberts, 20 Vt. 286. 4. Should Show Jurisdiction in Some Other Court. Where a plea to the jurisdiction of the court is filed, it must show jurisdiction in another court on its face, or it will be disre- garded. It is not sufficient to deny the jurisdiction of that court, without specifying what court has jurisdiction. Ridling v. Stewart, 77 Ga. 539 ; Fain v. Crawford (Ga., 1892), 16 S. E. Rep. 106. A plea to the jurisdiction must show another court in the state which has jurisdiction ; hence, where a plea to a Kinds of Pleas. ABATEMENT IN PLEADING. Jurisdiction. in abatement of the writ, it is said, need not do so. 1 It is not sufficient for the plea to show facts making it discretionary with the court to exercise jurisdiction. 2 Where the Lack of Residence necessary to confer jurisdiction is relied on, the plea must clearly show such want of residence and nega- tive any inference of its existence, 3 and also state the defend- suit brought in a justice's court in F. county alleged "that at the commence- ment of the suit the defendant was a Resident of De K. county, and resides there now, and has so resided for the past year, and that the said justice court of F. county has no jurisdiction of, the person of the defendant, and that a suit against the same defendant by the same plaintiff in relation to the same subject-matter is pending in the court of defendant's residence," such plea was held bad for not show- ing what court in De K. county had jurisdiction. Fain v. Crawford (Ga., 1892), 16 S. E. Rep. 106. A plea in abatement to the jurisdic- tion must be certain, according to the most rigid rules of precision, and it must always show another form in which the rights in litigation are sub- ject to judicial authority. Hence a plea in abatement in replevin, " that defendant took the goods as deputy United States marshal, on execution issued out of the United States Circuit Court against a third person " (speci- fied), is bad on demurrer for failing to allege that the execution was issued on any judgment, or that any judg- ment had been obtained against the plaintiff in replevin or the defendant in execution, or that the property was levied on as belonging to the defend- ant in the execution. Heyman z>, Covell, 36 Mich. 157. 1. Plea in Abatement of the Writ. Where a defendant was not sued in the proper county, and pleaded in abatement " that he was before and at the time of the commencement of the suit, and at all times thereafter, a resident of McLean county, and was not a resident of Cook county, and that he was not found or served with pro- cess in Cook county, nor elsewhere than in the county of McLean, and that said plaintiffs were not at the commencement of said action resi- dents of said county of Cook, nor are they now residents of said county," held, good on demurrer as a plea in abatement of the writ, and not tech- nically to the jurisdiction, and that as such it need not show some other court which had jurisdiction. Scott v. Waller, 65 111. 181. 2. Not Sufficient to Show Jurisdiction Discretionary. In an action on a prom- issory note, the defendant's answer alleged that the defendant was a non- resident of the state ; that the plaintiff was a foreign corporation ; that the note in suit was made in another state; and that by reason of these facts the court had no jurisdiction either of the subject-matter of the action or the person of defendant. Held, demur- rable, because under the New York statute the court has jurisdiction if it chooses to exercise it. Colorado State Bank v. Gallagher, 76 Hun (N. Y.) 310. 3. Should Show Want of Residence. A plea to the jurisdiction merely alleg- ing that a party is a citizen of Oregon temporarily residing in London, Eng- land, without specially denying the allegation made that he is a citizen of Rhode Island and resident in England, is insufficient. First Nat. Bank v. Salem Capital Flour Mills Co., 31 Fed. Rep. 580. In an action on a foreign judgment a plea which alleges that defendant at the time of the commencement of the action in which the judgment was ob- tained, or at any" time before its rendi- tion, was not resident or domiciled within the jurisdiction, and had no notice or knowledge of the suit or op- portunity of defending it, is bad for failing to allege that he was not a sub- ject or citizen of the foreign country and amenable to its jurisdiction. Brit- ish Linen Co. v. McEwan, 8 Manitoba Rep. 99. In an action before a justice in one county, a plea to the jurisdiction to the effect that defendant is now a bona- fide citizen of another county, and was residing there at and long before the commencement of the suit, and claims the privilege of being sued in his own county, and has not waived the right of being sued in the county of his 7 Kinds of Pleas. ABATEMENT IN PLEADING. Jurisdiction. ant's place of residence. 1 Prayer. The plea should conclude with a prayer, praying judg- ment whether the court will take cognizance of the action or suit. 2 It has been held that a plea of a fraudulent assignment to residence, nor authorized suit to be brought against him in the county in which he was sued, is defective in not alleging with certainty that defendant was not a resident of the county in which the suit was brought. Noel v. Denman, 76 Tex. 306. Several Defendants. An answer in abatement by one defendant that the action is brought in the wrong county, on the ground that the answering de- fendants are residents of another county, is demurrable if it fails to show that the other defendant is not a resident of the county in which the ac- tion is brought. Brown v. Underbill, 4 Ind. App. 77. A plea in abatement averring "that the cause of action arose in the county of L. and was specifically made pay- able there, and defendant was served there, but with process issued in the county of C., and that a codefendant served with process in C. county also resides in the county of L.," is good on demurrer. Hamilton v. Dewey, 22 111. 490. 1. Should Show where Defendant Re- sides. In a suit in a county court by a non-resident plaintiff, where defend- ant is described in the writ as a resident of the county where the writ is returnable, if defendant pleads in abatement that he is not a resident of that county, he must allege and prove his residence in some county in the state. Vanderburg v. Clark, 22 Vt. 185. A plea in abatement to the jurisdic- tion on the ground that defendant does not reside in the county in which the suit was brought and the cause of action did not arise there must state where defendant resides and where the cause of action arose. Middleton v. Pinnell, 2 Gratt. (Va.) 203. A plea in abatement of a writ aver- ring "that at and before the date of the writ (which was issued in one county and was directed to the sheriff of another county), and ever since, the defendant resided in the county in which the writ was issued," is a good plea. Clarke v. Hite, 5 Blackf. (Ind.) 167. Where the material fact raised by a plea in abatement was whether the defendant resided at A. when suit was commenced, an averment " that at the time of the issuing and service of the writ the defendant did reside, and for a long time before had and ever since has resided, in the town of B. and not elsewhere," is bad on demurrer, as not sufficiently direct and positive ; but an averment "that at the time aforesaid he did reside in A." is go^d and sufficient. Durand v. Griswold, 26 Vt. 48. Abuse of Criminal Process. Where a defendant pleads in abatement to the jurisdiction of the district court of the county in which the suit is brought " that all the defendants were at the time of the commencement of the ac- tion residents of another county ; that by the abuse of the criminal process of the state a codefendant was taken from a jail in the county where all the de- fendants resided to the county in which the suit was brought and there served with process and thereafter returned to said jail ; and that su.ch abuse of criminal process and service was re- sorted to for the purpose of obtaining jurisdiction of the person of the de- fendant who so pleaded," held, a good plea to the jurisdiction. Hurlburt z>. Palmer (Neb. , 1894), 57 N. W. Rep. 1019. Where a plea in abatement averred that the defendant was not a resident of the state, but resided in the state of M. when the writ was served, with- out stating in what place in the state of M. defendant resided, it was held good. Colburn v. Talles, 13 Conn. 524. 2. Prayer. Leonard v. Grant, 6 Sawy. (U. S.) 603 ; Adams v. White, 2 Pittsb. (Pa.) 21. A plea in abatement by a non-resi- dent corporation sued in equity be- ginning : "This defendant, appearing specially and solely to object to the jurisdiction of this court, pleads to the jurisdiction of this court over it, and for cause of plea says that this de- fendant is not compellable to appear in response to said writs and does not ac- cept or waive service thereof " set- ting up matter showing want of juris- diction, and concluding " wherefore defendant prays the judgment of this S Kinds of Pleas. ABATEMENT IN PLEADING. Coverture. evade the insolvent laws should be liberally construed. 1 Whether it has jurisdiction may be determined by the court on the trial of the plea or the issue of fact raised. 2 3. Infancy piea or Demurrer. The objection that the plaintiff is an infant and sues in his own name should be raised by a plea in abatement or by demurrer. 3 Waiver. If it is not so taken it is deemed waived. 4 4. Coverture Demurrer or Plea. The objection of the marriage of a female plaintiff or the non-joinder of her husband can be taken advantage of only by plea in abatement or by demurrer. 5 Verification. Such a plea is a dilatory one requiring an affidavit of verification where dilatory pleas are required to be verified. 6 Non-joinder. It has been held not to be a plea of non-joinder with- in the common-law procedure act. 7 honorable court whether it ought to be required to appear in accordance with any writ of subpoena issued in said suit " held proper in form and that it did not raise an issue on the merits so as to operate as an appearance by de- fendant. U. S. v. American Bell Teleph. Co., 29 Fed. Rep. 17. 1. Fraudulent Assignment. A plea in abatement to the jurisdiction on the ground that a claim has been collu- sively and fraudulently assigned in order to evade the provisions of the law in relation to insolvent estates is not to be treated as dilatory and cap- tious like most pleas in abatement, but should be liberally construed. Wal- lace v. Clark, 3 Woodb. & M. (U. S.). 359- 2. A plea to the jurisdiction of a probate court on the ground that a bill has been filed in a court of equity and that court has assumed jurisdiction need not set out the bill, as its suf- ficiency is a question to be determined on the trial of the plea. Tygh v. Dolan, 95 Ala. 269. Where an action was brought in a county court to foreclose a mortgage on machinery, the defendant in his answer alleged " that at the time the mortgage was given and also at that time the machinery was a fixture and part of the homestead of one of the de- fendants, who was a married man and the head of a family, and that the court had no jurisdiction to decree a fore- closure of the mortgage," held, that it was error to sustain a general de- murrer to the answer and exclude evi- dence of the facts alleged therein on the trial; that the court had power to hear evidence and determine whether it had jurisdiction, whether want of jurisdiction appeared in the petition or in the answer. Gentry v. Bowser, 2 Tex. Civ. App. 388. 3. Schemerhorn v. Jenkins, 7 Johns. (N. Y.) 373; Blood -v. Harrington, i Pick. (Mass.) 552 ; Drago v. Moso, I Speers (S. Car.) 212 ; Young v. Young, 3 N. H. 345 ; Gully v. Dunlop, 24 Miss. 410. 4. Weinberger v. Frieden, N. Y. Daily Reg., Mch. 6, 1884; Smart v. Haring, 14 Hun (N. Y.) 276; Perkins v. Stimmel, 114 N. Y. 359; 17 Civ. Pro. Rep. (N. Y.) 25. 5. Powell v. Glenn, 21 Ala. 458 ; Sheidle v. Weishlee, 16 Pa. St. 134 ; Lasterz/. Toliver, n Ark. 450; Chiracs. Reinicker, n Wheat. (U. S.)28o;.Sur- tell v. Brailsford, 2 Bay (S. Car.) 333- Necessary Allegations. A plea of coverture in abatement should allege the existence of the coverture at the time of the commencement of the ac- tion and its continuance up to the time of the filing of the plea, by the con- tinued life of the husband. These are the necessary allegations of such a plea. Atwood v. Higgins, 76 Me. 423; Lovell v. Walker, 9 M. & W. 299 ; i Dowl. N. S. 952. This is so although part of the cause of action accrued after the coverture, and if not verified plaintiff is entitled to judgment for want of a plea, Ib. 6. In order to avoid the statute of limitations the disability of coverture must be pleaded ; it is not available unless pleaded. Crow v. Fiddler, 3 Tex. Civ. App. 576. 7. Riordan v. Walsh, 6 Jr. R. C. L. 189. Kinds of Pleas. ABATEMENT IN PLEADING. Capacity to Sue. 5. Capacity to Sue When Raised by Plea. Any facts showing a want of capacity to sue on the part of the plaintiff should be set up by a plea in abatement unless apparent on the face of the record, in which case the objection can be taken advantage of by demurrer. 1 If not so taken it is deemed waived. 2 Party Suing in Representative Capacity. This rule applies to the case of a plaintiff who sues in a representative capacity and is not entitled to sue in such capacity. 3 Admission of Capacity. Failure to so raise the objection is an ad- mission of plaintiff's capacity to sue in the particular action which he has brought. 4 Requisites of the Plea. Such pleas should be clear, definite, and certain. 5 It is not sufficient to merely deny that a corporation exists or was organized, 6 or to allege merely that it has ceased to exist. 7 The facts causing the incapacity should be 1. Edwards v. Ford, 2 Bailey (S. Car.) 461; Shivers v. Wilson, 5 Har. & J. (Md.) 130; Rich v. Penfield,' i Wend. (N. Y.) 380; Elektron Mfg. Co. v. Jones Bros. Electric Co., 8 Ohio Cir. Ct. 311; Society, etc., v. Pawlet, 4 Pet. (U. S.) 480; Hoyt v. Hoyt, 58 Vt. 538; Cook -v. Lansing, 3 McLean (U. S.) 57i- 2. Waiver. Pierrepont v. Loveless, 4 Hun (N. Y.) 696; Jemmerson v. Ken- nedy (Supreme Ct.),' 26 N. Y. St. Rep. 469; Palmer v. Davis, 28 N. Y. 242; Hathaway v. Orient. Ins. Co. (Supreme Ct.), 33 N. Y. St. Rep. 678; Mossel- man v. Caen, 34 Barb. (N. Y.) 66; Nanz v. Oakley, 122 N. Y. 631; 19 Civ. Pro. Rep. (N. Y.) 246; People v. Metropolitan Tel. Co., 31 Hun (N. Y.) 599; Perkins v. Stimmel, 114 N. Y. 359; Kilpatrick v. Dean (City Ct.), 19 N. Y. St. Rep. 837; 4 N. Y. Supp. 708; Society, etc., v. Pawlet, 4 Pet. (U. S.) 480. 3. Lang v. Whidden, 2 N. H. 435; Treasurer v. Wiggins, i McCord (S. Car.) 568; Clapp v. Beardsley, I Vt. 151; Childress v. Emory, 8 Wheat. (U. S.)642; Picquet v. Swan, 3 Mason (U. S.) 4 6 9 . Assignee's Bond. The objection that a general assignee for the benefit of creditors has not filed his official bond, and is therefore not entitled to maintain an action for the alleged con- version of a part of the assigned estate, should be raised by demurrer or answer, or it is waived. Kilpatrick v. Dean (City Ct.), 19 N. Y. St. Rep. 837 ; 4 N. Y. Supp. 708. 4. Plaintiff a Corporation. If a de- fendant wishes to insist on the want of capacity of a plaintiff, a corpora- tion, to sue as a corporation, he must do so by a special plea in abatement or in bar. Pleading the general issue or to the merits is an admission not only of the plaintiff's capacity to sue in general, but also to sue in the par- ticular action which he has brought. Society, etc., v. Pawlet, 4 Pet. (U. S.) 480. 5. Wright v. Wright, 54 N. Y. 437. 6. Denial of Incorporation. A denial that defendant is or ever was a cor- poration, organized and existing under the laws of a specified country, is bad as a denial of corporate existence, be- cause it practically admits it was organized somewhere. Wright v. Fire Ins. Assoc., 12 Mont. 474. Where an answer alleges "that de- fendant denies any knowledge or in- formation sufficient to form a belief as to the alleged incorporation of plain- tiff " (a corporation), it is not sufficient to raise an issue as to the incorpo- ration of plaintiff under the provisions of the N. Y. Code of Civ. Pro. 1776, providing " that proof of the exist- ence of a corporation need not be made unless the answer is verified and contains an affirmative allegation that the plaintiff is not a corporation." Martin Cantine Co. v. Warshauer (Supreme Ct.), 28 N. Y. Supp. 139 ; 7 Misc. Rep. (N. Y.) 412; East River Electric Light Co. v. Clark (C. PL), 45 N. Y. St. Rep. 635 ; 18 N. Y. Supp. 463. See also CORPORATIONS. 7. Corporation Ceased to Exist. Where the existence of a corporation is expressly averred or admitted it is not sufficient to allege that it has 10 Kinds of Pleas. ABATEMENT IN PLEADING. Real Party. stated. 1 But merely denying the validity of the appointment of a receiver has been held sufficient. 2 The answer of a guardian ad lit em should disclose for whom he was appointed such guardian or it cannot be considered for any purpose. 3 6. Real Party in Interest How Objection Taken. The objection that the plaintiff is not the real party in interest or that his title to the cause of action is defective should be taken by a plea in abatement or by demurrer. 4 Requisites. Such pleas must clearly point out the defects existing, be definite and certain, and negative contrary inferences. 5 ceased to exist. The facts must be set forth showing that its existence has terminated. People v. Stanford, 77 Cal. 360. 1. Wound up Business. A plea that the charter of a corporation has ex- pired, and that it had ceased to exist at law at the time the alleged cause of action against it for a tort arose, is a bad plea unless it also is alleged that the corporation had ceased to exist and had wound up its business in fact as well as in law. Miller v. Newburg Orrel Coal Co., 31 W. Va. 836. Failure to File Articles of Incorpora- tion. The failure of a corporation plaintiff to file a copy of its articles of incorporation in the office of the county clerk, as required by statute in California, is ground for a plea in abatement, and should be so spe- cially pleaded. An allegation in the answer that plaintiff has not legal capacity to sue, and never was a cor- poration duly organized under the laws of the state, does not raise the question or set up the fact of its fail- ure to file its articles of incorporation with the county clerk. Ontario State Bank v. Tibbits, 80 Cal. 68. Intervenor not Filing Bond. A plea that an intervenor in sequestration proceedings does not show any cause therefor, and that his petition is in- sufficient in law, is merely a general demurrer, and does not raise the ob- jection that no oath and bond were made and filed in the action. Irvin v. Ellis, 76 Tex. 164. Alien Enemy. Where the defendant pleads that the plaintiff is an alien enemy and therefore cannot sue, he must aver that the plaintiff possessed that character at the time of the com- mencement of the suit. Elgee v. Lovell, i Woolw. (U. S.) 102. 2. Appointment of Receiver. An an- swer denying the validity of the ap- pointment of a receiver is sufficient, although it does not point out the specific defect, where he has not al- leged in his petition the various steps leading to his appointment. Matter of O'Connor (Supreme Ct.), 47 N. Y. St. Rep. 415. The denial by executors, in answer to a petition for an accounting, of the validity of the appointment of the petitioner as receiver of a beneficiary under the will, sufficiently puts the ap- pointment in issue, although the spe- cific defect is not pointed out where the steps leading to the appointment are not set out in the petition. Matter of Beecher's Estate (Supreme Ct.), 19 N. Y. Supp. 971. 3. Newman v. Maldonado (Cal., 1892), 30 Pac. Rep. 833. 4. Lanier v. Trigg, 6 Smed. & M. (Miss.) 641 ; 45 Am. Dec. 293 ; Hazlip v. Leggett, 6 Smed. & M. (Miss.) 326; Coburn v. Palmer, 8 Cush. (Mass.) 124 ; Gerrish v. Gary, i Allen (Mass.) 213; Burnett v. Lyford, 93 Cal. 114; Boyseau v. Campbell, McAll. (U. S.) 119; Var- num v. Taylor, 59 Hun (N. Y.) 554; Spooner v. Delaware, etc., R. Co., 115 N. Y. 22. In Kansas should be by Answer, not Plea. In an action on a promissory note against the maker and endorsers, the question whether plaintiff is the owner of the note cannot be raised by plea in abatement or motion, even if it be claimed the note was indorsed to plain- tiff in pursuance of a conspiracy to enable the action to be brought in a county where it could not be brought by the person claimed to be the real owner of the note. Such question can only be raised by answer. Linney v. Thompson, 44 Kan. 765 5. Assignment of Claim. An objection to the prayers of the plaintiffs in an action on an insurance policy for the reason that one of them has assigned II Kinds of Pleas. ABATEMENT IN PLEADING. Misnomer. Good and Bad Pleas. That the plaintiff had transferred the note in suit as collateral security has been held a good plea. 1 But that the suit is not that of the plaintiff, or not authorized by him, or that plaintiff has agreed that his attorney shall have the recovery, have been held bad pleas. 3 As a Plea in Bar. Where such a plea has the effect of a plea in bar a final verdict may be rendered on the issue formed. 3 7. Misnomer (see also NAMES). At Common Law the misnomer of a party plaintiff or defendant was pleadable in abatement, and was not a ground for setting aside the proceedings or vacating the judgment. 4 In the United states pleas in abatement for misnomer are generally allowed, and are the only proper mode of raising the objection, although not mentioned in the various codes as one of the grounds of demurrers or dilatory answers. 5 Their propriety has his claim and has no existing demand is bad and untenable where it does not appear whether the assignment was in writing or not, whether made before or after suit, or whether absolute or conditional. Globe Reserve Mut. Ins. Co. v. Duffy, 76 Md. 293. Member of a Trust or Combination. An answer, in an action to recover the price of goods alleged to have been sold and delivered, which alleges by way of a plea in abatement " that the plaintiff is a member of a trust or com- bination which is the real party in in- terest," is defective for not alleging whether the alleged trust is a partner- ship or corporation, and also whether any of its members other than plain- tiff have any interest in the goods sold or in the money to be paid therefor. National Distilling Co. v. Cream City Importing Co. (Wis., 1893), 56 N. W. Rep. 864. 1. Assignment of Note as Collateral. In an action on a promissory note, an answer alleging that the action is not brought in the name of the real party in interest, and that the plaintiff had endorsed the note and delivered it to other parties as collateral security, is not demurrable. Johnson. v. Chilson, 29 Neb. 301. 2. Suit not that of Plaintiff. In a suit for seduction and breach of promise of marriage, a plea that the suit is not the suit of the plaintiff is properly stricken out, for the question of main- tenance is one for the court, not the jury. Graham v. McReynolds, 88 Tenn. 240. Suit not Authorized. An answer al- leging on information and belief that plaintiff never authorized the suit and is not aware of its institution presents no defence and is not sufficient to re- quire an inquiry into the authority of plaintiff's attorney. Robinson v. Rob- inson, 32 Mo. App. 88. Attorney to have Recovery. In an ac- tion for damage for injuries to person and property, a plea in abatement that plaintiff has no interest because he had agreed with his attorneys that they should sue in his name, pay all costs, and receive the whole amount recovered, is bad, because a claim for damages to the person is not assign- able. Jones v. Matthews, 75 Tex. I. 3. In Abatement and Bar. A plea which alleges " that the plaintiff is not the owner of the note in suit, but that his name was used by the real owner of the note in order to acquire stand- ing in a federal court," is a plea in bar as well as in abatement, and by it an issuable defence is raised which is properly submitted to a jury, and a verdict for the plaintiff thereon is a verdict on the merits, which will not be set aside. Lanning v. Lockett, II Fed. Rep. 814. 4. Chitty on Pleading, pp. 248, 451 ; Gould on Pleading, ch. 5, 69-84. In England pleas in abatement for this cause were abolished by the Pro- cedure Act, 3 & 4 Wm. IV, ch. 42, n. 5. First Nat. Bank v. Jaggers, 31 Md. 38 ; too Am. Dec. 53 ; Wilcox v. State, 31 Tex. 586 ; White v. Miller, 7 Hun (N. Y.) 427 ; Miller v. Stettiner, 22 How. Pr. (N. Y. Super. Ct.) 518 ; Traver v. Eighth Ave. R. Co., 3 Keyes (N. Y.) 497 ; McCrory v. Anderson, 12 Kinds of Pleas. ABATEMENT IN PLEADING. Misjoinder. been questioned, 1 but it is well settled that the objection must be raised by plea or demurrer whether the misnomer be that of plaintiff 2 or defendant, 3 and is waived if not so taken. 4 Application of Kule. This rule applies to a misnomer in a repre- sentative capacity, 5 to the case of a default, 6 and in equity. 7 Raises issue of Fact. A plea of misnomer raises an issue of fact which is to be sustained by evidence and determined like other issues of fact, and not by a motion on the pleadings to dismiss the complaint. 8 8. Misjoinder Method of Raising Objection. The mode in which the objection of misjoinder of parties should be raised varies in different jurisdictions. In some it is held that the objection of misjoinder of parties plaintiff can be raised under the general issue, and need not be taken by plea in abatement. 9 It is also held that in ac- tions on contract the misjoinder of parties defendant can betaken 103 Ind. 12 ; Paden v. King, 30 Ind. 181 ; Sinton v. Steamboat R. R. Rob- erts, 46 Ind. 476 ; Ridenour v. Mayo, 29 Ohio St. 138 ; State v. Bell Teleph. Co., 36 Ohio St. 296 ; 38 Am. Rep. 583 ; Pennsylvania Co. v. Sloan, 125 111. 72. 1. Elliott v. Hart, 7 How. Pr. (N. Y. Supreme Ct.) 25 ; Dole v. Manley, ii How. Pr. (N. Y. Supreme Ct.) 138. 2. Hudson v. Poindexter, 42 Miss. 304 ; Simmons v. Thomas, 43 Miss. 31 ; Melvin v. Clark, 45 Ala. 285 ; Tay- lor v. Littell, 21 La. Ann. 665 ; Silver- nagl v. Fluker, 21 La. Ann. 188 ; Den- tal Vulcanite Co. ^. Wetherbee, 3 Fish. Pat. Cas. (U. S.) 87. It has been held not a fatal defect for an answer to designate the orig- inal plaintiff as plaintiff, although his executrix has been substituted for him as plaintiff. Williams v. Eiken- bury, 36 Neb. 478. 3. Seely v. Boon, i N. J. L. 138 ; Pate v. Bacon, 6 Munf. (Va.) 219; Jewett -v. Burroughs, 15 Mass. 469; David v. David, i Greene (Iowa) 427 ; Porter v. Cresson, 10 S. & R. (Pa.) 257 ; Gilbert v. Nantucket Bank, 5 Mass. 97 ; Miller v. Stettiner, 7 Bosw. (N. Y.), 692 ; Waterbury v. Mather, 16 Wend. (N. Y.) 611 ; Salisbury v. Gil- lett, 3 111. 290 ; Synes v. State, 5 Port. (Ala.) 236; Mann v. Carley, 4 Cow. (N. Y.) 148 ; Scull v. Briddle, 2 Wash. (U. S.) 200 ; Kincaird v. Howe, 10 Mass. 205 ; Smith v. Bowker, i Mass." 76 ; Barnes v. Perine, 9 Barb. (N. Y.) 202 ; Christian Soc. v. McCumber, 3 Met. (Mass.) 235 ; Moss v. Flint, 13 111. 570; Pendleton v. Bank of Ky., i T. B. Mon. (Ky.) 174; Carpenters. State, 8 Mo. 291 ; Thompson v. Elliott, 5 Mo. 118. Contra. Rock Island v. Steele, 31 111. 543- 4. Bank of Havana v. Magee, 20 N. Y. 355 ; Traver v. Eighth Ave. R. Co., 3 Keyes (N. Y.) 497; State v, Bell Teleph. Co., 36 Ohio St. 296 ; 38 Am. Rep. 583 ; Young v. South Trede- gar Iron Co., 85 Tenn. 189 ; 4 Am. St. Rep. 752. 5. Misnomer in Representative Capacity. The rule as to misnomer of de- fendants applies to a misnomer relat- ing to the representative capacity of a defendant, as where a defendant is sued as executor when he is an ad- ministrator, or vice versa, and objec- tion must be taken by a plea in abate- ment. Clements v. Swain, 2 N. H. 475. 6. Corporations. Unless the mis- nomer of a corporation is taken ad- vantage of by plea it is waived, as well where the corporation suffers a default as where it answers. Whittle- sey v. Frantz, 74 N. Y. 457. 7. In Equity a plea in abatement for misnomer is proper, but such a plea does not end the suit. The defendant after he has pleaded in abatement and disclosed his true name must plead in chief. Dixon v. Cavenaugh, i Overt. (Tenn.) 365. 8. Miller v. George, 30 S. Car. 526. 9. Rhoads v. Booth, 14 Iowa 575; Gerry v. Gerry, n Gray (Mass.) 382; Tate v. Citizens' Mut. F. Ins. Co., 13 Gray (Mass.) 79; Glover v. Hunnewell, 6 Pick. (Mass.) 222; Hill v. Davis, 4 Mass., 137; Whiting v. Cook, 8 Allen (Mass.) 63. Kinds of Pleas. ABATEMENT IN PLEADING. Non -joinder. advantage of under the general issue. 1 In New York, Missouri, and Utah the objection of misjoinder of parties must be taken by answer in the nature of a plea in abatement or by demurrer. 3 Who Can Object. One who is properly made a defendant cannot object to the joinder of other parties where it does not affect him. 3 Time for Objection. The objection of misjoinder should properly be taken at the earliest opportunity. 4 A Plea to Several Counts must be good as to all of them, or judg- ment will be given against the pleader. 5 9. Non-joinder piea or Demurrer. As a general rule, the objec- tion of the non-joinder of proper parties plaintiff or defendant should be taken advantage of by plea in abatement or answer in the nature thereof when the objection does not appear on the face of the record, and by demurrer when it does so appear. 6 1. Gray v. Palmers, i Esp. 135; Whiting -v. Cook, 8 Allen (Mass.) 63; Blight v. Ashley, Pet. (C. C.) 16; Porter v. Harris, i Lev. 63; Shirreff v. Wilks, i East 52; Robeson v. Gan- derton, 9 C. & P. 476 ; 38 E. C. L. 191; Hannah v. Smith, 3 T. R. 662; Mana- han v. Gibbons, 19 Johns. (N. Y.) 109; Burnham v. Webster, 5 Mass. 270; Peebles v. Rand, 43 N. H. 339; Browne v. Warner, 2 J. J. Marsh. (Ky. ) 38; Jenkins v. Hunt, 2 Rand. (Va.) 446. In actions of tort the misjoinder of proper parties defendant can be taken advantage of only by a plea in abate- ment. Warner v. Wilson, 4 Cal. 310; Harlem v. Emmert, 41 111. 320. 2. Hier v." Staples, 51 N. Y. 136; Zabriskie v. Smith, 13 N. Y. 322 ; 64 Am. Dec. 551; Fosgate v. Herkimer Mfg. Co., 12 Barb. (N. Y.) 352 ; aff'd 12 N. Y. 580; Dillaye v. Parks, 31 Barb. (N. Y.) 132; Bayle v. Lawton, 23 N. Y. Wkly. Dig. 172; Zimmerman v. Schoenfeldt, 3 Hun (N. Y.) 692; Palmer v. Davis, 28 N. Y. 242; O'Brien v. Glenville Woolen Co., 50 N. Y. 128; Fox v. Mayer, 54 N. Y. 125; Donahue v. Bragg, 49 Mo. App. 273; Crenshaw v. Ullman, 113 Mo. 633; Preshaw v. Dee, 6 Utah 360. Misjoinder of Defendants in Georgia. In Georgia the improper joipder of defendants does not cause an abate- ment or quashing of an action, but the action proceeds against the others (proper parties) to judgment and exe- cution in the same manner as if the defendants found not liable and dis- charged had not been originally joined as defendants. Wooten v. Nail, 1 8 Ga. 609. 3. Misjoinder of Other Defendants. In a suit for an infringement of a pat- ent, a citizen of the district in which the suit is brought, and who is a de- fendant, cannot successfully demur on the ground that he is joined as de- fendant with a corporation over whom the court has no jurisdiction. Cramer v. Singer Mfg. Co., 59 Fed. Rep. 74. A party who is properly a defendant in an action cannot successfully demur on the ground of misjoinder of parties defendant. Bigelow v. Sanford (Mich., 1894), 57 N. W. Rep. 1037. 4 Adams v. Adams, 64 N. H. 224. 5. Plea to Several Counts. Where a plea in abatement for the misjoinder of parties is pleaded to several counts in a declaration, and is bad as to any one of the counts, it must be held bad altogether and judgment of respondent ouster given, although it would have been a good plea if it had been pleaded separately to the other counts. Phil- lips v. Claggett, 10 M. &. W. 102 ; 6 Jur. 629. 6. Gock v. Keneda, 29 Barb. (N. Y.) 120 ; Cushman v. Family Fund Soc. (C. PL), 13 N. Y. Supp. 428; Davis v. Bechstein, 69 N. Y. 440, 25 Am. Rep. 218; Carr v. Security Ins. Co., 109 N. Y. 504; Risley v. Wightman, 13 Hun (N. Y.) 163 ; Ostrander v. Weber, 114 N. Y. 95 ; Browning v. Marvin, 22 Hun (N. Y.) 547 ; Reed v. Hayt, 51 N. Y. Super. Ct. 121; 109 N. Y. 659; Brown v. Brown, 29 Hun (N. Y.) 498 ; Fisher v. Hall, 41 N. Y. 416 ; Farwell v. Importers', etc., Bank, 90 N. Y. Kinds of Pleas. ABATEMENT IN PLEADING. Non-joinder. As to Defendants, there seems to be no question that the objection must be thus raised, whether the action be on contract or in tort. 1 In Actions for Torts the non-joinder of proper parties plaintiff must be taken advantage of by a plea in abatement when it is not apparent on the face of the record; and if not so taken, all the defendant can do is to restrict the damages to the interest of the plaintiff or plaintiffs suing. 2 Plaintiffs in Contract. In actions on contract it has been held in many cases that the non-joinder of proper parties plaintiff could be taken advantage of under the general issue without a plea in 483 ; Karelsen v. Sun Fire Office, 45 Hun (N. Y.) 144; Arnstein v. Haulen- beck (C. PL), 34 N. Y. St. Rep. 297 ; Blount v. Wetherell, 32 Hun (N. Y.) 386; Wemple v. McManus (Super. Ct.), 39 N. Y. St. Rep. 141; Sullivan v. New York, etc., Cement Co., 119 N. Y. 348 ; Zabriskie v. Smith, 13 N.Y. 322; 64 Am. Dec. 551 ; Maxwell v. Pratt, 24 Hun (N. Y.) 448 ; Hallem v. Jones, 2 Misc. Rep. (N. Y. C. PI.) 249; Stelling v. Grabowsky (Supreme Ct.), 46 N. Y. St. Rep. 700 ; 19 N. Y. Supp. 280 ; Jem- mison v. Kennedy, 55 Hun (N. Y.) 47 ; Douglass v. Leonard (C. PL), 44 N. Y. St. Rep. 293 ; 18 N. Y. Supp. 591 ; Le Page v. McCrea, i Wend. (N.Y.) 164; 19 Am. Dec. 469; Baldwin v. Second Street Cable Co., 77 Cal. 390; Williams v. Patrons of Husbandry (Mo., 1886), 5 West. Rep. 105; State v. True, 20 Mo. App. 176 ; Atkinson v. Mott, 102 Ind. 431. 1. Allen v. Lucket, 3 J. J. Marsh. (Ky.) 164; Com. -v. Davis, 9 B. Mon. (Ky.) 128 ; Moore v. Russell, 2 Bibb (Ky.) 443 ; Andrews v. Allen, 4 Harr. (Del.) 452 ; White v. Gushing, 30 Me. 267 ; Robinson v. Robinson, 10 Me. 240; Winslow v. Merrill, n Me. 127; State v. Chandler, 79 Me. 172 ; Nealley v. Moulton, 12 N. H. 485 ; Gove v. Lawrence, 24 N. H. 128 ; Powers v. Spear, 3 N. H. 35 ; Exum v. Davis, 10 Rich. (S. Car.) 357; Storey v. Mc- Neill, Harp. (S. Car.) 173 ; Hamilton v. Buxton, 6 Ark. 24; Allen v. Sewall, 2 Wend. (N. Y.) 327 ; Le Page v. Mc- Crea, i Wend. (N. Y.) 164 ; 19 Am. Dec. 469; Robertson v. Smith, 18 Johns. (N. Y.) 459; 9 Am. Dec. 227; Williams v. Allen, 7 Cow. (N. Y.)3i6; Ziele v. Campbell, 2 Johns. Cas. (N.Y.) 382; Gay -v. Gary, 9 Cow. (N. Y.)44; Pharis v. Gere, 14 N. Y. Wkly. Dig. 387; Sheltonz/. Banks, 10 Gray (Mass.) 401 ; Barstow v. Fossett, u Mass. 250; McGregor v. Balch, 17 Vt. 562 ; Mer- shon v. Hobensack, 22 N. J. L. 373 ; Lieberman v. Brothers (N. J., 1893), 26 Atl. Rep. 828 ; Hine v. Houston, 2 Greene (Iowa) 161; Hurley v. Roche, 6 Fla. 746; Potter v. McCoy, 26 Pa. St. 458; Horton v. Cook, 2 Watts (Pa.) 40; Wilson -v. Wallace, 8 S. &. R. (Pa.) 55; Merrick v. Bank of Metropolis, 8 Gill (Md.) 59; Clementson v. Beatty, i Cranch (C. C.) 178; Miner v. Mechan- ics' Bank, i Pet. (U. S.) 46; Hender- son v. Hammond, 19 Ala. 340; Barnett v. Watson, i Wash. (Va.) 372; Conley v. Good, i 111. 135; Mason v. Fairfield, 2 Ind. 84; Gilbert v. Allen, 57 Ind. 524; McArthur v. Ladd, 5 Ohio St. 517; Ritter v. Hamilton, 4 Tex. 325; Davis v. Willis, 47 Tex. 154; Bovven v. Gulp, 36 Mich. 224; Coffee v. Eastland, I Cooke (Tenn.) 159. 2. Edwards v. Hill, u 111. 22; John- son v. Richardson, 17 111. 302; Frazier v. Spear, 2 Bibb (Ky.) 385; Bell v. Layman, I T. B. Mon. (Ky.) 40; 15 Am. Dec. 83; Hobbs v. Hatch, 48 Me. 55; Morley v, French, 2 Cush. (Mass.) 130; Phillips v. Cummings, n Cush. (Mass.) 469; Thompson v. Hoskin, n Mass. 419; Chandler v. Spear, 22 Vt. 388 ; Briggs v. Taylor, 35 Vt. 57 ; White v. Webb, 15 Conn. 302; Johnson v. Ransom, 24 Conn. 531; Chouteau v. Hewitt, 10 Mo. 130; True v. Congdon, 44 N. H. 48; Wilson z: Gamble, 9 N. H. 74; Garvin v. Paul, 47 N. H. 158; Reading R. Co. v. Boyer, 13 Pa. St. 497; Dubois v. Glaub, 52 Pa. St. 238 ; Walworth v. Abel, 52 Pa. St. 370 ; Winters v. McGhee, 3 Sneed (Tenn.) 128; Gilbert v. Dickerson, 7 Wend. (N. Y.) 449 ; 22 Am. Dec. 592; Wheel- wright v. De Peyster, i Johns. (N. Y.) 471. Kinds of Pleas. ABATEMENT IN PLEADING. Non-joinder. abatement or answer in the nature thereof; 1 but this is not a universal rule. 2 Executors and Administrators. Objection to non-joinder of executors or administrators, either as plaintiffs or defendants, it has been held, must be raised by plea in abatement. 3 Partners. And the same rule has been applied to partners plaintiff or defendant. 4 1. Addison v. Overend, 6 T. R. 770; Scott v. Godwin, i B. & P. 73; Snel- grove v. Hunt, 2 Stark 424 ; 3 E. C. L. 473; Wiggins v. Cummings, 8 Allen (Mass.) 353; Baker v. Jewell, 6 Mass. 460, 4 Am. Dec. 162; Thompson v. Hos- kin, ii Mass. 420; Wright v. Post, 3 Conn. 142; Pitkin v. Roby, 43 N.H. 139; Doremus v> Selden, 19 Johns. (N. Y.) 213; Robertson v. Smith, 18 Johns. (N. Y.) 459; 9 Am. Dec. 227; Dob v. Halsey, 16 Johns. (N. Y.) 34; 8 Am. Dec. 293; Ziele v. Campbell, 2 Johns. Cas. (N. Y.) 384; Snell v. Deland, 43 111. 323; Smith v. Crichton, 33 Md. 103; Duval v. Mayson, 23 Ark. 30; Hicks v. Branton, 21 Ark. 189; Hoard w.Wilcox, 47 Fa. St. 51. 2. White v. Brooks, 43 N. H. 409; Langv. Whidden, 2 N. H. 435; Garner v. Tiffany, Minor (Ala.) 167; Dorseyz/. Lawrence, Hard. (Ky.) 517. See also authorities cited under note i. Part Owners of Chattel. If one of sev- eral part owners of a chattel sues alone, the defendant can take advantage of the fact only by a plea in abatement. Addison v. Overend, 6 T. R. 766; Sedg- worth v. Overend, 7 T. R. 279. Libel for Salvage. In a libel for salv- age the objection " that there are other persons who co-operated with the libel- lants in rendering the services for which the libel is filed, and who should be joined," is in the nature of a plea in abatement, and if valid is waived un- less taken by answer or exception to the libel in the court of original juris- diction. The Camanche, 8 Wall. (U. S.) 4 76. Non-joinder of Plaintiffs Husband. Under the New Jersey practice act, notice of the non-joinder of plaintiff's husband must be given in order to make it a defence at the trial. Brady v. Potts (N. J., 1887), ii Atl. Rep. 345. In Equity. An objection to the non- joinder of parties plaintiff on the ground that the plaintiff is a bankrupt, and that his assignee in bankruptcy is not joined as a party, cannot be prop- erly set up in an answer in equity, but should be raised by a plea in abate- ment. Kittredge v. Claremont Bank, 3 Story (U. S.) 590. 3. Gordon v. Goodwin, 2 Nott & M. (S. Car.) 70; 10 Am. Dec. 573 ; Newton v. Cocke, 10 Ark. 169 ; Lillard z>. Lil- lard, 5 B. Mon. (Ky.) 340; Hunt v. Kear- ney, 3 N. J. L. 721. 4. Smith v. Cooke, 31 Md. 174 ; 100 Am. Dec. 58; McDonald v. Western Refrigerating Co., 35 111. App. 283; Puschel v. Hoover, 16 111. 340; Thomp- son v. Strain, 16 111. 369; Deal v. Bogue, 2O Pa. St. 228; 57 Am. Dec. 702; Bellas v. Fagely, 19 Pa. St. 273; Chorpenning v. Royce, 58 Pa. St. 474; Alexander v. McGinn, 3 Watts (Pa.) 220; Dorsey v. Lawrence, Hard. (Ky.)si7; Chappell v. Proctor, Harp. (S. Car.) 49; Clement- son v. Beatty, i Cranch (C. C.) 178; Coffee v. Eastland, i Cooke (Tenn.) 159. Cannot Show Partnership under Gen- eral Denial. Under a mere denial in an answer of an alleged partnership a defendant cannot claim or show that there are other persons interested in the firm who should have been made plaintiffs. Karelsen v. Sun Fire Office, 45 Hun (N. Y.) 144. Non-joinder of Partners as Plaintiffs. Where plaintiff declares in assumpsit, the objection that other persons were partners with defendant in the busi- ness in which the contract is alleged to have been made, and should have been joined as defendants, is matter of abatement, and is only available when pleaded. If defendant fails to plead it in abatement, plaintiff may prove the contract of the firm and the partner- ship and have judgment against de- fendant alone for the whole debt, every partner being liable to creditor for firm debts. Smith v. Cooke, 31 Md. 174 ; loo Am. Dec. 58. Need not Prove Knowledge of Partner- ship. Where the defendant pleads in abatement the non-joinder of his part- ners who were joint promisors with him, in order to support the plea he is not obliged to prove that the plaintiff when he contracted knew he was deal- 16 Kinds of Pleas. ABATEMENT TN PLEADING. Nonjoinder. When by Demurrer. Where the objection appears on the face of the record, the question should be raised by demurrer, it seems to be generally held. 1 To warrant a demurrer it should appear from the record that the omitted party is alive. 2 At Any stage of Action. In some cases it has been held that the defect of the non-joinder of proper parties defendant may be taken advantage of at any stage of the action and need not be raised by plea or demurrer. 3 Eequisites of Plea. A plea in abatement for non-joinder should give the names of the parties omitted, 4 and show that they are alive ing with a partnership. Norwood v. Sutton, i Cranch (C. C.) 327. Plea Good if only Part of Claim Joint. In an action against A., B. , and C. for work done, they pleaded that the work was done for them jointly with an- other, and on trial it was proved to be so as to fart of the work. Held, that the plea was an answer to the action. Hill v. White, 6 Bing. N. Cas. 23; 37 E. C. L. 263; 8 Scott 245; 3 Jur. 1077. Joint Contractors as Variance. The non-joinder of one of several joint con- tractors as defendant, whose liability is shown by the evidence, can be taken only by plea in abatement, and cannot be taken advantage of under the gen- eral issue on the ground of a variance between the pleading and proof. Wil- son v. McCormick, 86 Va. 995. Joint Contractors Jury Charge. In an action on a contract, to wit, to recover a loan which defendant claims was made to him jointly with another, the failure to join such other person as de- fendant can be taken advantage of only by a plea in abatement; and where the defendant fails to interpose such a plea, it is error for the trial justice to charge the jury " that if they find the loan was made to defendant and such other person jointly, they must find for defendant." Pearce v. Pearce, 67 111. 207. Members of Association. In an ac- tion against members of an association individually, if plaintiff names only part of those who should be named, defendants should interpose a plea in abatement; and if they do not do so, those who are named must submit to judgment against them. Davison v. Holden, 55 Conn. 103. 1. Note 6, p. 14, and cases there cited. Where it is alleged in a complaint that the plaintiff is the owner of a note by means of an indorsement from a firm of which he is a member, the suffi- ciency of the indorsement can be tested only by demurrer for defect of i Encyc. PI. & Pr. 2. I parties. It cannot be presented in an attack on the complaint in the assign- ment of errors. Eichelberger v. Old Nat. Bank, 103 Ind. 402; Fulton v. Loughlin, 118 Ind. 288. Overruling of Demurrer does not Pre- vent a Plea: To a libel in admiralty for a breach of a charter party, the de- fendant may plead in abatement that there are other owners and necessary parties, notwithstanding the fact that a demurrer for an apparent variance between the libel and the charter party had been previously overruled. Card v. Hines, 35 Fed. Rep. 598. 2. Gilbert v. Allen, 57 Ind. 524; Davis v. Willis, 47 Tex. 154; Bowen v. Gulp, 36 Mich. 224; Fowler v. Rickerby, 3 Scott N. R. 138; 2 M. & G. 760; gDowl. Pr. Cas. 682. Contra. Where from plaintiff's pleadings it appears that a joint con- tractor with the defendants has not been made a party, and there is no averment of his death, the objection of his non-joinder may be raised by demurrer, as well as by a plea in abatement. State v. Chandler, 79 Me. 172. 3. McGregor v. Balch, 17 Vt. 562; Merrick v. Bank of Metropolis, 8 Gill (Md.) 59; Harwood v. Roberts, 5 Me. 441; Nealley v. Moulton, 12 N. H. 485; Ela v. Card, 2 N. H. 175; 9 Am. Dec. 46; Cook v. Berkley, 3 Call (Va.) 378; Newell v. Wood, i Munf. (Va.) 555; Jordan v. Wilkins, 3 Wash. (Va.) no; Saunders v. Wood, I Munf. (Va.) 406; Leftwich v. Berkeley, I Hen. & M. (Va.) 61. On Appeal. Where in an action on a bond it appears by the declaration that one of the obligors named in the bond is not joined as a defendant in the ac- tion thereon, a plea in abatement is not necessary to raise this objection, but it may be taken on error to review a judgment by default. Cummings v. People, 50 111. 132. 4. Tweedy v. Jarvis, 27 Conn. 42; Kinds of Pleas. ABATEMENT IN PLEADING. Non-joinder. and within the jurisdiction of the court and within reach of its process. 1 It has been held that it need not state the place of abode 2 or the age of the party. 3 Where the omitted parties are executors, it should show that they qualified and are acting as such. 4 Pleas in abatement for non-joinder should be clear, definite, and certain, and should show the interest in the matter of the omitted party or parties. 5 But they need not negative American Express Co. v. Haggard, 37 111. 465; 87 Aril. Dec. 257; Mershon v. Hobensack, 22 N. J. L. 372; Aulanier v. Governor, i Tex. 653; Wadsworth z>. Woodford, I Day (Conn.) 28; Wilson V. Nevers, 20 Pick. (Mass.) 20; Fink v. Naples, 15 Ind. 297; Schwartz v. Wechler, 23 Civ. Pro. Rep. (N. Y. C. PI.) 21 ; 29 Abb. N. Cas. (N. Y.) 332; 2 Misc. Rep. (N. Y.) 67; Crellin v. Brook, i C. & K. 571; 47 E. C. L. 570; Case v. Minot, 158 Mass. 577; Baker v. Reese, 150 Pa. St. 44. 1. Goodhue v. Luce, 82 Me. 222; Door County v. Keogh, 77 Wis. 24; Carico v. Moore, 4 Ind. App. 20; Palmer v. Field, 76 Hun (N. Y.) 229; Holt v. Streeter, 74 Hun (N. Y.) 538. Should show Parties Alive. In an ac- tion to recover possession of land the defendant pleaded in abatement "that the premises in the writ and declara- tion mentioned were at the time named in said writ and declaration in the pos- session of him the said Robert Robert- son (defendant) together with one Isaac Plummer, and not in the posses- sion of said Robertson alone, and this he is ready to verify. Wherefore, in- asmuch as the said Isaac Plummer is not named in said writ and declaration together with the said Robert Robert- son, he prays judgment of said writ and declaration that the same may be quashed, etc." Held, bad on demurrer for not alleging the omitted person to be alive and within the jurisdiction. Furbish v. Robertson, 67 Me. 35. Bad if shows Parties not within Juris- diction. A plea in abatement for non- joinder of co-contractors is bad if it shows some of the co-contractors are non-residents within the jurisdiction, for by 3 & 4 Will. IV, ch. 42, 8, defend- ant is required to _state that all are resident within the jurisdiction, and must verify the plea by affidavit. Gell v. Curzon, 4 D. & L. 810; n Jur. 737- Ordinary Language Sufficient. Al- though in a plea of non-joinder in abatement it must be averred that the omitted defendant is alive and within the jurisdiction of the court, it is suf- ficient if this is done in language which ordinarily imports this ; hence where the answer alleged "that the defendants and one K. (the omitted party) are co-partners doing business at Belmont, Alleghany County, New York, by the name and style of S. & K., and that the note set out in the complaint is the note of said firm in its firm business," it was held to sufficient- ly import that the omitted party was living and within the jurisdiction, and to be good. Lefferts v. Silsby, 54 How. Pr. (N. Y. Supreme Ct.) 193. Need not Allege Positively. In an ac- tion against the city of Sheboygan, Wisconsin, to recover damages for in- juries caused by a defective street, it is a good plea in abatement for de- fendant to state the name of the person whose negligence caused the defect in the street and allege that he is a resi- dent of the city, and it need not be al- leged that he is living within the juris- diction of the court. Raymond v. Sheboygan, 70 Wis. 318. 2. Eesidence. A plea in abatement for non-joinder need not set forth the places of abode and additions of the persons omitted. Ela v. Rand, 3 N. H. 95- 3. Age. A plea in abatement for the non-joinder of a person alleged to be a joint contractor with defendant need not allege that the omitted person was of full age when he entered into the contract. Roberts v. McLean, 16 Vt. 608; 42 Am. Dec. 529. 4. Executors. Where a plea of non- joinder of co-executors as plaintiffs does not show where they reside and that they were executors at the time the suit was commenced, it is bad. Beach v. Baldwin, 9 Conn. 476. Where an action affects executors, a plea in abatement " that there are other executors not named in the writ " is bad if it does not allege that the omitted executors qualified and took on them- selves the execution of the will. Bur- row v. Sellers, i Hayw. (N. Car.) 501. 5. Interest of Omitted Parties. A 18 Kinds of Pleas. ABATEMENT IN PLEADING. Defects in Process. matter which would be insufficient in a replication thereto. 1 10. Privilege and Non-tenure. The objection of a personal privilege of a defendant should in general be raised by a plea in abatement, 2 and the same rule has been held in real actions in relation to the claim of non-tenure or disclaimer. 3 11. Defects in Process and Proceedings. Defects in process not appearing on the face of the record and which do not render it void must be taken by a plea in abatement, or they are waived. 4 plea in abatement predicated on the non-joinder of parties defendant should set forth definitely the nature and intent of the interest of each per- son who is claimed to be a necessary party. State -v. Goodnight, 70 Tex. 682. Interest in Fund. Where a defend- ant is sued to recover a fund in his hands, an answer by him alleging that there are other persons besides plain- tiff who claim an interest in the fund and from whom he should be protected is bad and insufficient for not setting out the names of such parties and stat- ing their interest in the fund. John- son v. Gooch (N. Car., 1894), 19 S. E. Rep. 62. Plea of No Partnership. Where the maker of a note who was sued alone on a note signed in his name with the ad- dition of "& Co." pleaded "no part- nership," such plea is insufficient to prevent judgment ; for, if true, it shows no one else ought to have been sued but him. To raise the question of non- joinder he should have pleaded it. Hirsch v. Oliver (Ga., 1893), 18 S. E. Rep. 154- Tenant in Common. Where defend- ant pleads in abatement the non- joinder of tenants in common of a dam, he should allege the dam to be real estate or the plea is bad. South- ard v. Hill, 44 Me. 92:69 Am. Dec. 85. Claiming under Different Titles. A plea in abatement setting up "that plaintiffs and defendants are tenants in common with other different owners of certain land (of which the land in suit forms part) and asking that the suit abate until such other owners are brought in," is bad on demurrer where it appears that defendants claim the specific lands sued for under deeds from such other persons or their ven- dors and have made no attempt to bring them in as parties. Smith v. Powell, 5 Tex. Civ. App. 373. As a Separate Defense. The non- joinder of proper parties must be distinctly pleaded as a separate and distinct defense; hence where in an action on contract the defendant's an- swer alleged that the contract was made with the plaintiff and a third person and that they had not per- formed it on their part, held, it did not raise the question of non-joinder. Chaffee v. Morss, 67 Barb. (N. Y.)252; 5 Thomp. & C. (N. Y.) 708. 1. Personal Discharge of Co promisor. A plea in abatement lies for the non- joinder of a joint contracting party. Facts which merely go to the personal discharge of such co-promisor, such as death, insolvency, etc., need not be alleged in the plea, because they would be insufficient in a replication thereto and hence need not be anticipated and included by the plea. Goodhue v. Luce, 82 Me. 222. Discontinuance as to One of Two Defend- ants. Where plaintiff discontinues after verdict as to one of two defend- ants sued jointly, it amounts merely to an amendment and does not entitle the other defendant to plead in abate- ment matter which would have been a good plea in abatement had such defendant originally sued alone. Schweyer v. Oberkoetter, 25 111. App. 183. 2. Shelby v. Johnson, 7 Humph. (Tenn.) 503; Grove v. Campbell, 9 Yerg. (Tenn.) 7. 3. Prescott v. Hutchinson, 13 Mass. 439; Otis v. Warren, 14 Mass. 240; Fogg -v. Fogg, 31 Me. 302; Dewey v. Brown, 2 Pick. (Mass.) 387; Wyman v. Brown, 50 Me. 139; Brown v. Milti- more, .2 N. H. 442; Young -v. Tarbell, 37 Me. 509; Fosdick v. Gooding, i Me. 54; Mills -v. Pierce, 2 N. H. 10; New- begin v. Langley, 39 Me. 200; 63 Am. Dec. 612; Campbell v. Wallace, 12 N. H. 362. 4. Pattee v. Lowe, 35 Me. 121; Ste- vens v. Ewer, 2 Met. (Mass.) 74; Frank- fort Bank v. Anderson, 3 A. K. Marsh. (Ky.) i; Bliss v. Connecticut, etc., R. Co., 24 Vt. 428; O wings v. Beall, 3 Kinds of Pleas. ABATEMENT IN PLEADING. Service, etc. This is also the rule as to all irregularities in proceedings which are not jurisdictional. 1 12. Variance How Objection Raised. A variance between the writ and the declaration or count should be taken advantage of by a plea in abatement. 2 Oyer. A plea in abatement for a variance should crave oyer of the originals, 3 which may be done in one paragraph. 4 Enrollment. The plea should set out the originals and make profert of and enroll the copies served. 5 Enforcement of Rules. In many of the states oyer of the writ is still allowed, and in them the rules as to variance are enforced. 6 13. Service, etc. Taking Advantage of Defects. Where the court has jurisdiction and there has been an appearance, defects in the ser- vice of process should in general be taken advantage of by a plea in abatement. 7 Litt. (Ky.) 103; Jordan v. Bell, 8 Port. (Ala.) 53; McCrea v. Starr, I Murph, (N. Car.) 252; Payne v. Grim, 2 Munf. (Va.)297; Dudley z/. Carmolt, i Murph. (N. Car.) 339; Miller v. Gages, 4 Mc- Lean (U. S.) 436; Johnson v. King, 20 Ala. 270. 1. Cabell v. Payne, 2 J. J. Marsh. (Ky.) 134; Borden v. Fowler, 14 Ark. 471; Cowell v. Oxford, 6 N. J. L. 432. 2. Wilson v. Shannon, 6 Ark. 196; Duvall v. Craig, 2 Wheat. (U. S.) 45; Turner v. Brown, 9 Ala. 866; Prince v. Lamb, i 111. 378; Cruik- shank v. Brown, 10 111. 75; Carpenter v. Hoyt, 17 111. 529; McKenna^. Fisk, i How. (U. S.) 241; Garland v. Chattle, 12 Johns. (N. Y.) 430; Chirac v. Rei- nicker, n Wheat. (U. S.) 280. On Appeal. A variance between the writ and the declaration is unavail- able when presented for the first time in an appellate court; such an ob- jection must be taken by a plea in abatement. Fonville v. Monroe, 74 111. 126. Where there is a Total Departure from the writ in the declaration it is not necessary to plead the variance in abatement, but the declaration may be stricken from the files on motion. Chapman v. Spence, 22 Ala. 588. 3. Goldsticker v. Stetson, 21 Ala. 404; Chapman v. Davis, 4 Gill (Md.) 166; Nichols^. Smalley, 7 Blackf. (Ind.) 200; Lary v. Evans, 35 N. H. 172. 4. Pitman v. Perkins, 28 N. H. 90. It is immaterial whether oyer be craved of the writ and declaration or only of the writ, where the declaration is incorporated into the writ. Lyman v. Dodge, 13 N. H. 197. Where the Writ Constitutes a Part of the Record it is not necessary for the de- fendant to crave oyer of the writ as preliminary to presenting a plea in abatement. Pierce v. Lacy, 23 Miss. 193- 5. Garner v. Johnson, 22 Ala. 494; Nelson v. Sweet, 4 N. H. 256; Findlay v, Pruitt, 9 Port. (Ala.) 195; Tucker v. Perley, 5 N. H. 345; Goodall v. Durgin, 14 N. H. 576; Dinsmore v. Pendexter, 28 N. H. 18; Lary v. Evans, 35 N. H. 172. The name of the indorser on the writ and of the sheriff on the summons need not necessarily be enrolled in setting them out. Knowles v. Rowell, 8 N. H. 542. Enrollment Substantially Correct. An enrollment must be substantially cor- rect, but misspelling and inaccuracies of a clerical nature are not material unless they occur in parts of the rec- ord necessary to bring out the point made by the plea. Baker v. Brown, 18 N. H. 551; Colby -v. Dow, 18 N. H. 557. Where the word "Greeting" is part of a summons, a plea attempting to show a variance between the writ and summons but omitting that word from the summons as enrolled is bad on de- murrer. Goodall v. Durgin, 14 N. H. 576. 6. Pitman v. Perkins, 28 N. H. 90; Carpenter v. Hoyt, 17' 111. 529 ; Chap- man v. Spence, 22 Ala. 588; Pierce v. Lacy, 23 Miss. 193; McNeill v. Arnold, 17 Ark. 178; Chirac v. Reinicker, n Wheat. (U. S.)3O2; Garland v. Chattle, 12 Johns. (N. Y.) 430; Bank of New Brunswick v. Arrowsmith, 9 N. J. L. 284- 7. Curtis v. Baldwin, 42 N. H. 398; Carlisle v. Weston, 21 Pick. (Mass.) 20 Kinds of Pleas. ABATEMENT IN PLEADING, Service, etc. By Motion or Writ of Error. The objection has been allowed to be raised by motion to dismiss 1 and on writ of error. 2 Pleading in abatement has been held not a waiver of the right to move to quash the writ. 3 Must Show Service Defective. A plea in abatement for defective ser- vice must clearly and distinctly show that the service made was defective, and also that the writ or process was not served in any other way. 4 Exclude Contrary inferences. It should exclude all matters which, if alleged in reply, would defeat it. 5 535; Laverty v. Turner, 4 Dev. (N. Car.) 275; Simonds v. Parker, i Met. (Mass.) 508; Hinton v. Ballard, 3 W. Va. 582; Brigham v. Clark, 20 Pick. (Mass.) 43; Barksdale v. Neal, 16 Gratt. (Va.) 314. 1. No Authority in Person Serving. Where total want of authority in the person who undertook to serve a writ appears on the face of the process, the defect may be taken advantage of by plea in abatement or motion to dis- miss. Howard v. Walker, 39 Vt. 163. 2. Not Served according to Statute. Where service of a writ on an absent defendant who had a last and usual place of abode within the state is not made by leaving the summons or copy thereof at such place, as required by the statute, such defect of service may be raised by plea in abatement or writ of error. Tilden v. Johnson, 6 Cush. (Mass.) 354. 3. Motion to Quash after Plea. By pleading in abatement for a defective service the defendant does not waive the right to insist on the improper ser- vice of the process, and he may with- draw his plea and make a motion to quash the writ for the defect in the service. Halsey v. Kurd, 6 McLean (U. S.) 14. 4. Pearson v. French, 9 Vt. 349; Morse v. Nash, 30 Vt. 76; Adams v, Hodsdon, 33 Me. 225; Tweed v. Lib- bey, 37 Me. 49. 5. Should show Defendant an Inhabit- ant. As a plea in abatement must in- clude all matters which if alleged in reply would defeat it, it is not suffi- cient to aver facts showing defendant was not served, unless it be also al- leged that the defendant was at the time an inhabitant of the state. Tweed v. Libbey, 37 Me. 49; Adams v. Hodsdon, 33 Me. 225. Enable Plaintiff to make Better Ser- vice. Where defendant pleads in abatement to the service of a writ of error " that the plaintiff ought to have served it by leaving a copy there- of with A., who was his (defendant's) attorney at the time of the pretended service, is now his attorney, and was his attorney, who appeared in the original cause," it is sufficient, al- though it is not averred that A. was the only attorney who appeared for defendant, there being sufficient al- leged to enable the plaintiff to make a legal service. Colburn v. Tolles, 13 Conn. 524. Service on Agent of Corporation. In an attachment suit in Vermont against a foreign corporation, a plea in abate- ment by the corporation alleging that the person on whom the copy of the writ was served was not a clerk or other officer or stockholder of the cor- poration is insufficient, because it fails to allege that he was not an agent or attorney, or that the copy was not left with him at the place of attach- ment. Shampeau v. Connecticut River Lumber Co., 37 Fed. Rep. 771. Service on Resident of State. Where a writ describes the defendant as a resident of the state, a plea in abate- ment averring facts showing the ser- vice defective on defendant as a res- ident of the state is good and suffi- cient. Defendant is not required to negative proper service on him as a non-resident. Cady v. Gay, 31 Conn. 395- Show by Whom should be Served. A plea in abatement for defective ser- vice alleging "that the writ was served by one deputy sheriff on an- other deputy sheriff" is sufficient. It need not allege by whom it ought to have been served. Guild v. Richard- son, 6 Pick. (Mass.) 369; Brown v. Gordon, i Me. 165. False Keturn of Sheriff. In Missis- sippi if it is desired to impeach the truth of a sheriff's return, it must be done by a plea in the nature of a plea 21 Kinds of Pleas. ABA TEMENT IN PLEADING. Action Premature. Privilege as a Witness. When defendant relies on his privilege while attending court as a witness as rendering service on him defective, the plea should be strictly accurate in all respects, and should set out fully the court in which he was attending, the suit in which he was a witness, that the suit was then pending in the court, the names of the parties to the suit, and state the party for whom he was summoned as a witness. 1 Material Matters. Pleas in abatement for defective service should not allege and rely on immaterial matters. 2 14. Action Premature How Objection Kaised. The objection that an action is prematurely brought must be raised by plea in abate- ment unless it appears on the face of the record and can be taken by demurrer. 3 It cannot be alleged as a defence on the merits, 4 nor to limit the recovery. 5 in abatement which shall set forth the facts on which reliance is had to establish the falsity of the return, and on which plea issue may be joined and a trial by jury had. A motion to set aside the return as untrue is im- proper. Mayfield v. Barnard, 43 Miss. 270. Not Agent of Corporation. Where in a suit against a corporation it is claimed that the person on whom ser- vice of process was made was not the agent of the corporation, that ques- tion must be raised by plea in abate- ment unless the grounds therefor ap- pear on the face of the record, in which case it may be by motion to quash the return of service. Rubel v. Beaver Falls Cutlery Co., 22 Fed. Rep. 282. Service by Officer Out of Office. Where defendant pleads in abatement " that the officer by whom the writ was served was, after his appoint- ment as a deputy sheriff, appointed and commissioned as a justice of the peace, whereby the former office be- came vacant," the plea is bad for not alleging that the officer both took and subscribed the oath of office as justice. Chapman v. Shaw, 3 Me. 372. 1. Baker v. Compton, 2 Head (Tenn.) 47 i. 2. No Service on Defendants Not Plead- ing. A plea in abatement by two de- fendants to a writ of error against four defendants (the two not plead- ing being described in the writ as residents, of another state), to the effect " that no service has been made on the two defendants not pleading, alleging that they reside in the same state and traversing their residence in another state," is bad on the ground that the fact traversed is immaterial. Denslow v. Moore, i Day (Conn.) 290. Service at Wrong Time. A plea in abatement " that it does not appear by the writ that it was served ten days before the term " is frivolous and will be set aside. Nelson v. Cum- mins, i Overt (Tenn.) 436. 3. Midland R. Co. v. Stevenson, 6 Ind. App. 702 ; Carter v. Turner, 2 Head (Tenn.) 52 ; Smith v. Holmes, 19 N. Y. 271 ; Herndon v. Garrison, 5 Ala. 380 ; Giboney v. German Ins. Co., 48 Mo. App. 185 ; Clements v. Swain, 2 N. H. 475 ; Walker v. Johnson, 2 McLean (U. S.) 92 ; Wingate v. Smith, 20 Me. 287 ; Collette v. Weed, 68 Wis. 428. Suit before Statutory Time. Where a statute provided that no suit to collect a tax alleged to be erroneously as- sessed should be brought until it had been taken to the collector of internal revenue, held, that the fail- ure to take such an appeal before bringing suit, and thus suing pre- maturely, was matter which must be set up by a plea in abatement, and not having been so set up, the right to object therefor was lost. Hendy v. Soule, Deady (U. S.) 400. 4. Collette v. Weed, 68 Wis. 428. 5. Not to Limit Recovery. The pre- mature commencement of a suit can- not be used to limit recovery to a cer- tain sum ; it is matter of abatement, but not in bar. Grigsby v. German Ins. Co., 48 Mo. App. 276. In Indiana matter tending to show that an action is prematurely brought can only be set up by plea in abate- 22 Bequisites and ABATEMENT IN PLEADING. Construction. Such Matter if Pleaded in Bar has been held demurrable, 1 but not so when pleaded in abatement. 2 15. Pendency of Another Action as a ground for a plea in abate- ment. See ANOTHER SUIT PENDING. III. REQUISITES AND CONSTRUCTION construed strictly. Pleas in abatement, as they do not deny the merits of plaintiff's claim, but merely tend to delay the remedy, are not favored by the courts, and the greatest strictness is applied to them, and they will not be aided in construction by any intendments. With them correctness of form is matter of substance, and any defect of form is fatal. They must answer the whole case and contain a full, direct, and positive averment of all material facts. 3 ment ; and if pleaded with matter in bar and not verified, it will be stricken out. Moore v. Sargent, 112 Ind. 484. 1. Note Not Due in Bar. An answer in bar to a suit on a note alleging "the note was by a mutual mistake made payable at an earlier date than intended " is demurrable. It is matter which must be pleaded in abatement, and cannot be set up in bar. Norris v. Scott, 6 Ind. App. 18. 2. Agreement to Extend Time. Where an answer in foreclosure al- leges the making of an agreement ex- tending the time of payment, and also that the extended time for payment has not yet expired, it is sufficient and not demurrable, unless it appear from the answer that a default has been made subsequent to the making of the agreement. Eby v. Ryan, 22 Neb. 470. 3. Durand v. Griswold, 26 Vt. 48 ; Morse v. Nash, 30 Vt. 76 ; Pearson v. French, 9 Vt. 349 ; Lary v. Evans, 35 N. H. 172 ; Dinsmore v. Pendexter, 28 N. H. 18 ; Tweed v. Sibbey, 37 Me. 49; Hazzard v. Haskell, 27 Me. 549 ; Burnham v. Howard, 31 Me. 569 ; Ellis v. Ellis, 4 R. I. no ; Wales v. Jones, i Mich. 254 ; Belden v. Laing, 8 Mich. 500 ; Townsend v. Jeffries, 24 Ala. 329 ; Roberts v. Heim, 27 Ala. 678 ; Haywood v. Chestney, 13 Wend. (N. Y.) 495 ; Settle v. Settle, 10 Humph. (Tenn.) 504 ; Prosky v. West, 16 Miss. 711 ; Moss v. Ashbrooks, 12 Ark. 369 ; Mandel v. Peet, 18 Ark. 236 ; Fowler v. Arnold, 25 111. 284; Hollaway v. Freeman, 22 111. 197 ; Clark v. Warner, 6 Conn. 358 ; Parsons v. Ely, 2 Conn. 377; Wadsworth & Woodford, i Day (Conn.) 28 ; Thompson v. Lyon, 14 Cal. 39 ; Sarco v. Clements, 36 Cal. 132 ; Anonymous, Hempst. (U. S.)2i5; Powell v. Fullerton, 2 B. & P. 420. Plea by President of Corporation. Great precision is required in pleas in abatement both in form and structure, and they are not favored by the courts. Hence where a corporation, sued as defendant, puts in a plea in abatement which purports to be put in by "its president and secretary," instead of "by its attorney," it will be held bad on demurrrer. Nixon v. Southwestern Ins. Co., 47 111. 444. Bad Beginning of Plea. Pleas in abatement must be strictly accurate even in matters of form ; hence a plea for misnomer commencing "and the defendant, against whom, etc., comes," etc., is bad, for it admits such defendant to be the person sued. Feasler v. Schriever, 68 111. 322. Actions Accruing. A plea in abate- ment alleging "that the said causes of action did not accrue nor were they made payable in the county of, etc.," is bad for not averring that no one of them did accrue or was made payable in said county. Dunlap v. Turner, 64 111. 47. Alteration of Plea. If pleas in abate- ment and the jurats thereto appear on their face to have been altered, this, if assigned, may be ground for ruling them out. Holloway v. Freeman, 22 111. 197. Pleading without Proper Defense. Where a plea in abatement com- menced, "And the defendant by his attorney appears to this suit and makes known here to this honorable court that the said attachment was unlawfully sued out, "etc., it was held bad on special demurrer on the ground that it was pleaded without proper defence. Prosky v. West, 16 Miss. 711. Bequisites and ABATEMENT IN PLEADING. Construction. Must be Certain and Anticipate Defence. Such pleas must be certain to every intent, and leave nothing to be drawn by inference. 1 They must anticipate and include all such supposable matter as would, if alleged by the opposite party, defeat the plea. 2 But 1. Baker v. Reese, 150 Pa. St. 44; Biddeford Sav. Bank v. Mosher, 79 Me, 242 ; Fahy v. Brannagan, 56 Me. 42 ; Llano Imp. Co. v. Cross, 5 Tex. Civ. App. 175 ; Webster v. Baggs, 6 R. I. 247 ; State v. Duggan, 15 R. I. 403 ; Chancy v. State, 118 Ind. 494 ; State -v. Emery, 59 Vt. 84 ; Burnside v. Matthews, 54 N. Y. 78 ; Wright v. Wright, 54 N. Y. 437. Submission of Claim under Statute. Pleas in abatement must be certain to every intent, and where such a plea is founded on the pendency of a submis- sion under the statute of all demands between the parties to a referee, it should state the name of the referee, allege his acceptance, and conclude with a prayer for judgment of the writ, or it is bad. Fahy v. Brannagan, 56 Me. 42. Must Allege Assignment Bona Fide. Where to an attachment suit it was pleaded in abatement " that the de- fendant therein had made an assign- ment of his property for the benefit of his creditors before the suit was brought, and that the deed of assign- ment was registered and the assignee in possession," held, such plea was fatally defective in failing to aver that the assignment was bona fide, or to rnake profert of the assignment. Lowenheim v. Ireland, 2 Baxt. (Tenn.) 214. Facts showing Opposing Title. Where in an action to foreclose a vendor's lien the defendant pleads in abate- ment an outstanding title in another than plaintiff, such plea is bad where it fails to allege the facts showing the title of the other opposed to plaintiff's title. Llano Imp., etc., Co. v. Cross, 5 Tex. Civ. App. 175. Non residence at Time Action Com- menced. A plea in abatement for the non-residence of a trustee made a de- fendant must allege the non-residence of the trustee at the time of the com- mencement of the action. An allega- tion of his non-residence at the time of the service of the writ is not suffi- cient in such a plea to show his non- residence at the time of the commence- ment of the action. Biddeford Sav. Bank v. Mosher, 79 Me. 242. Plaintiffs Death after Filing Declara- tion. A plea in abatement " that after the service of the writ and before the riling and entering of the action in court the plaintiff died, and an ad- ministrator was appointed and quali- fied to act for her estate," is bad on demurrer under a statute of Rhode Island " requiring the executor or ad- ministrator of a deceased party to a pending action to appear and further prosecute or defend the action, "the entry of a suit in court being defined to be " the filing of the necessary papers with the clerk and payment of the entry fee on the first or second day of the term ," because such plea is con- sistent with the supposition that plain- tiff died after the filing of the declara- tion, which would then be properly filed in her name, although before the entry of the action in court. Webster v. Baggs, 6 R. I. 247. Justice Interested in Matter. A plea in abatement in an action before a justice to punish a fraudulent debtor under the Michigan statute, that the justice is interested in the matter, need not allege that he was interested at the time the warrant was issued. It is sufficient where it alleges that the justice is interested and is an attorney in an action involving title to the prop erty defendant is charged with fraud- ulently concealing. Clark v. Mikesell, 81 Mich. 45. Notification to Holder of Legal Title. In a suit to recover a drainage assess- ment an answer is insufficient which merely alleges that the defendant was not a party to and had no notice of the assessment proceedings, but fails to allege that defendant's grantor, who held the legal title when the peti- tion therein was filed, was not notified and was not a party. Chancy v. State, 118 Ind. 494. 2 Bank of Vergennes v. Barker, 27 Vt. 243 ; Bowman v. Stowell, 21 Vt. 309 ; Bank of Rutland v. Barker, 27 Vt. 293 ; Goodhue v. Luce, 82 Me. 222 ; Capwell v. Sipe, 17 R. I. 475 ; McCauley v. State, 21 Md. 556 ; Man- del v. Peet, 18 Ark. 236. Attending Court as a Witness. A plea in abatement that defendant, who is a Requisites and ABATEMENT IN PLEADING. Construction. this rule applies only to such supposable matter as can properly be alleged and set up in the replication and anticipated by the plea, and not to every imaginable matter. 1 Duplicity. Such pleas must not be double ; duplicity is fatal to them. 3 A statute allowing several pleas has been held not to allow duplicity; 3 but the contrary has also been held. 4 Must Give Better Writ. Pleas in abatement must state enough to enable the plaintiff by amendment to completely avoid the mis- take or supply the defect on which the defendant relies, or in tech- nical language they must give the plaintiff a better writ. 5 non-resident, was at the time he was served with process in attendance on the court as a witness is bad in not negativing such attendance in any other capacity than as a witness. Cap- well v. Sipe, 17 R. I. 475. Ratification by Agent's Act. A plea in abatement that the person who signed an attachment bond for the plaintiffs had no competent authority from them to make it is bad unless it also alleges that the act of so signing said bond was not subsequently adopted and ratified by plaintiffs. Mandel v. Peet, 18 Ark. 236. Action by State's Attorney. Where an action is brought in the name of the state, a plea in abatement on the ground "that it is not brought by the state's attorney" should negative all statutory exceptions to the require- ment that suits be brought in the name of the state's attorney, or it is defective. McCauley v. State, 21 Md. 556. 1. Goodhue v. Luce, 82 Me. 222 ; Clark v. Mikesell, 81 Mich. 45 ; Web- ster v. Baggs, 6 R. I. 247. 2. Steamboat Napoleon v. Etter, 6 Ark. 103 ; Culver v. Balch, 23 Vt. 618; Roberts v. Moon, 5 T. R. 487 ; Cobb v. Miller, 9 Ala. 499 ; Cobb v. Force, 6 Ala. 468 ; Garner v. Johnson, 22 Ala. 494 ; State v. Heselton, 67 Me. 598. Several Distinct Pleas Bad. If several distinct pleas in abatement, each dis- tinct and good in itself, are pleaded at the same time, they will be held bad for duplicity as though pleaded in one plea. Culver v. Balch, 23 Vt. 618. Issues on Two Distinct Matters. When to an indictment by the grand jury the accused pleaded in abatement " that the county had not been legally divided into jury districts ; that two of the towns had in their jury boxes more names than were allowed by law, and that in two other towns no notice of the drawing of jurors was given," held, such plea was bad for duplicity as tendering issues upon two or more distinct, independent, and separate matters of fact. State v. Heselton, 67 Me. 598, Specifying Several Particulars not Double. A plea in abatement which alleges a variance between the writ and summons, and then proceeds to specify by setting forth two par- ticulars, each of which was itself a fatal variance, is not double, and so bad for duplicity. Dyke v. Percival, 14 N. H. 578. 3. Vermont. The statute of Ver- mont authorizing a defendant to plead several pleas does not embrace pleas in abatement, so as to allow several such pleas to be pleaded at the same time. Culver v. Balch, 23 Vt. 618. 4. Mississippi. The statute of Mis- sissippi making it lawful for a de- fendant to plead as many pleas in bar as he chooses, although some be to the party or the character of the party suing, etc., extends to and embraces pleas in abatement. James v. Dowell, 7 Smed. & M. (Miss). 333 ; Pharris v. Conner, 3 Smed. & M. (Miss.) 87. 5. Evans v. Stevens, 4 T. R. 224 ; Godson v. Good, 6 Taunt. 595 ; Ha- worth v. Spraggs, 8 T. R. 515 ; Chitty on Pleading (i6th Am. ed.), p. 473 ; Haywood v. Chestney, 13 Wend. (N. Y.) 495 ; Ellis v, Ellis, 4 R. I. no ; East v. Cain, 49 Mich. 473 ; Society, etc., v. Pawlet, 4 Pet. (U. S.) 501 ; Cook v. Burnley, n Wall. (U. S.) 668 ; Balti- more, etc., R. Co. v. Harris, 12 Wall. (U. S.) 84; Middleton v. Pinnell, 2 Gratt. (Va.) 203 ; Fink v. Maple, 15 Ind. 297 ; Pointer v. State, 89 Ind. 257 ; Deforest v. Elkins, 2 Ala. 50 ; Townsend v. Jeffries, 24 Ala. 329 ; Brown v. Gordon, i Me. 165 ; Parsons v. Ely, 2 Conn. 377 ; Wadsworth v. Woodford, i Day (Conn.) 29 ; Clark v: Eequisites and ABA TEMENT IN PLEADING. Construction, Matter Affecting Codefendant. Such pleas should not set up matter which affects only a codefendant and not the party pleading. 1 Cannot be Amended. Pleas in abatement cannot be amended. 2 Rules not Obsolete. The foregoing rules are not obsolete, but are still enforced in practice. 3 Warner, 6 Conn. 355 ; Boston, etc., Foundry v. Spooner, 5 Vt. 93 ; Pear- son v. French, 9 Vt. 349 ; Vanderburg v. Clark, 22 Vt. 388 ; Durand v. Gris- wold, 26 Vt. 48 ; Lester v. Stevens, 29 111. 155- No Authority to Sue. Pleas in abate- ment are not favored, and are strictly construed against the pleader ; and a plea for defect of parties must give the plaintiff a better writ and state precisely who should be made parties. Such a plea alleging, " Defendant further says that the plaintiff herein has no authority to institute or main- tain this proceeding against her," is bad. Shockley v. Fischer, 21 Mo. App. 551- No Defect Shown. Where a plea in abatement craves oyer of the affidavit, bond, and writ, but does not point out any defect therein so as to give plain- tiff a better writ, it is demurrable. Mohr v. Chaffe, 75 Ala. 387. Reason of no Jurisdiction. On objec- tion to the jurisdiction of the person, the reason therefor must be specially assigned. Freeman v. Burks, 16 Neb. 328. No Action at All. Where a plea in abatement tends to show that plain- tiff can maintain no action at all, it is bad. To be good it should give plaintiff a better writ. Evans v. Stevens, 4 T. R. 227. Should Set Out Title. A plea in abate- ment by a defendant to an action against him as assignee of a lease to the effect " that the estate is vested in him jointly with another" is bad for not setting out the title specially. Heap v. Livingstone, 7 Jur. 934 ; n M. & W. 896 ; i D. & L. 334. 1. Shannon v. Comstock, 21 Wend. (N. Y.) 457 ; 34 Am. Dec. 262 ; Bonzey v. Redman, 40 Me. 336 ; Bridge v. Payson, i Duer (N. Y.) 614 ; Bell v. Layman, I T. B. Mon. (Ky.) 40; 15 Am. Dec. 83. Codefendant not Served. That a Co- defendant has not been served is not sufficient as a plea in abatement unless it be also alleged that such defendant not served is a co-promisor or a co- obligor with the defendant pleading. . Patten v. Starrett, 20 Me. 145. 2. Amendments. Evans v. Prosser, 3 T. R. 186; Digby v. Alexander, 8 Bing. 416 ; 21 E. C. L. 339 ; Mandel v. Peet, 18 Ark. 236 ; Trinder -v. Durant, 5 Wend. (N. Y.) 72 ; Jenkins v. Pepoon, 2 Johns. Cas. (N. Y.) 312 ; Getchell v. Boyd, 44 Me. 482 ; Roberts v. Heim, 27 Ala. 678 ; Townsend v. Jeffries, 24 Ala. 329. See also AMENDMENTS. 3. U. S. -v. Williams, i Dill. (U. S.) 485 ; Donahue v. Bragg, 49 Mo. App. 273 ; Harney v. Parkersburg Ins. Co., 37 W. Va. 272 ; Parsons v. Ely, 2 Conn. 377 ; Lyons v. Rafferty, 30 Minn. 526 ; State Bank v. Hinton, i Dev. (N. Car.) 397 ; Stark v. Whitman, 58 Tex. 375. Common-law Rules in Force in United States Courts. The sufficiency of pleas in abatement must be tested by com- mon-law rules in the United States courts in the absence of any legisla- tion by Congress on the question of authorized rules of court. U. S. v. Williams, i Dill. (U. S.) 485. West Virginia. The rules of strict pleading still apply on demurrer to a plea in abatement in West Virginia, and material provision and exception in a statute must be averred in such plea or it is bad. Harney v. Parkers- burg Ins. Co., 37 W. Va. 272. Missouri. Showing a misjoinder of parties plaintiff by the answer is not sufficient to save an objection thereto, unless objection to such misjoinder is distinctly taken by the answer. Dona- hue v. Bragg, 49 Mo. App. 273. Texas. Where defendant pleads in abatement that he is not sued in the county where he resides, his plea must fully negative the exceptions in the statute which would authorize suit against him in the county in which he is sued. Stark v. Whitman, 58 Tex. 375-. Minnesota. A plea or answer in abatement for the misnomer of de- fendants must be so full and explicit as to exclude wholly any right in plaintiff to sue defendants by the name used. Lyons v. Rafferty, 30 Minn. 526. Connecticut. Where an alteration in 26 Prayer, Signature, ABA TEMENT IN PLEADING, and Verification. IV. PRAYEK, SIGNATURE, AND VERIFICATION Proper Prayer Neces- sary. Pleas in abatement must have a proper beginning and con- clusion, 1 and it is the conclusion or prayer which is of most importance, for it is held to determine the character of the plea and shows whether it be in bar or in abatement. 3 If the prayer be omitted, or there be a wrong prayer, the plea is bad ; 3 hence if matter of abatement concludes in bar, it is bad ; 4 but matter in bar pleaded in form as abatement has been held available. 5 a writ, rendering security given there- on void, is the ground of a plea in abatement, the plea must be com- plete in itself and show by precise and distinct averments of fact that security was necessarily required at the time of granting the writ, and that the alteration was made under such circumstances that it avoided the se- curity given. Parsons v. Ely, 2 Conn. 377- North Carolina. A plea in abatement " that no bond or security was taken " is sufficient, being equivalent to an al- legation that the bond or security was not taken and returned. State Bank v. Hinton, i Dev. (N. Car.) 397- 1. Pitt's Sons' Mfg. Co. v. Commer- cial Nat. Bank, 121 111. 582; Scott v. v. Norris, 6 Ind. App. 18 & 102; Godson Smith, 2 Moore, 157; Godson v. Good, 6 Taunt. 587; Jenkins v. Pepoon, 2 Johns. Cas. (N. Y.) 312; Foxwist v. Tremaine, 2 Saund. 209; Holden v. Scanlin, 30 Vt. 177. 2. Jenkins v. Pepoon, 2 Johns. Cas. (N.Y.)3i2; Schoonmaker v. Elmendorf, 10 Johns. (N. Y.) 49; Otis v. Warren, 14 Mass. 240; Lyman -v. Dodge, 13 N. H. 197; Landon v. Roberts, 20 Vt. 286; Peck -v. Griswold, 26 Vt. 97; Smith v. Chase, 39 Vt. 89; Lyman v. Central Vt. R. Co., 59 Vt. 167; Sabine v. Johnstone,, i B. & P. 60. Contra. Hargis v. Ayres, 8 Yerg. (Tenn.) 467. Relief Prayed for Determines it. Whether a plea is in abatement or in bar is determined from its conclusion, not from its subject-matter. It is the relief prayed for by the plea that de- termines its character. The proper prayer of a plea in abatement is that the writ and declaration be quashed; and where matter in abatement con- cluded with a prayer in bar, viz., prays judgment whether plaintiff ought to have or maintain his action, etc., held bad, as being matter in abatement pleaded in bar. Pitt's Sons' Mfg. Co. v. Commercial Nat. Bank, 121 111. 582. 3. Wade v. Bridges, 24 Ark. 569 ; Lownes v. Brown, 22 Ark. 359; Haz- zard v. Haskell, 27 Me. 549; Yelverton v. Conant, 18 N. H. 123; West Felici- ana R. Co. v. Johnson, 5 How. (Miss.) 273; Haywood v. Chestney, 13 Wend. (N.Y.) 495; Shaw v. Butcher, 19 Wend. (N. Y.) 216; Webb v. Samuel, 2 Miles (Pa.) 201; Smith v. Chase, 39 Vt. 89; Mantz v. Hendley, 2 Hen. & M. (Va.) 308. 4. Wickliffe v. Carroll, 14 B. Mon. (Ky.) 137; Brown v. Bickle, 7 Ark. 410; Stone v. Miller, 7 Barb. (N. Y.) 368; Leathers v. Meglasson, 2 T. B. Mon. (Ky.) 64; Robertson v. Fisher, 3 Cai. (N. Y.) 99; Banks v. Lewis, 4 Ala. 599; Schoonmaker v. Elmendorf, 10 Johns. (N. Y.) 49; Godson v. Smith, 2 Moore 157; Godson v. Good, 6 Taunt. 587. Indefinite Prayer. A plea ending, " wherefore he prays judgment, etc.," is bad, as it cannot be ascertained whether it is in bar or abatement. Jenkins v. Pepoon, 2 Johns. Cas. (N. Y.) 312. Prayer in Bar. A plea to the juris- diction purporting to answer the cause of action as a bar thereof, but failing to state matter in bar, and ending with a prayer for judgment whether plain- tiff ought to have or maintain his suit, is defective, as pleading matter in abatement in bar. Lyman v. Central Vt. R. Co., 59 Vt. 167. 5. In Bar Available on Demurrer. Where a defendant pleaded in abate- ment to the jurisdiction of the court that by virtue of a specified statute he was liable to be sued in her Majesty's courts of record in Dublin and not elsewhere, and the plea was demurred to, held, that although the plea was in form a plea in abatement, it disclosed matter in bar which the defendant could take advantage of on demurrer. Dundalk Western R. Co. v. Tapster, i Q. B. 697 ; 5 Jur. 699 ; i G. &. D. 657. 27 Prayer, Signature, ABA TEMENT IN PLEADING, and Verification- Form of Prayer. The usual and proper prayer is one "praying judgment of the writ and declaration and that the same be quashed." * The prayer in abatement of an attachment should be " that the attachment be quashed." 2 Where the plaintiff de- murs to the plea, he should pray judgment of respondent ouster and not judgment in chief. 3 Signature. Pleas in abatement should in general be signed by counsel. 4 Affidavit. They are generally required to be verified by affidavit. 5 to pray that the writ be quashed, al- though the principal defendant was properly served. Thayer v. Ray, 17 Pick. (Mass.) 166. Prayer for Affirmative Relief. Where in a suit on a note against the maker the defendant pleads in abatement that by mistake or fraud the note was so altered as to be made due before it was intended by the parties to become due, the plea should conclude with a prayer for a reformation of the note or some affirmative relief, or it is bad. Scott v. Norris, 6 Ind. App. 18 & 102. West Virginia. The West Virginia Code, ch. 125, 26, provides "that no formal defence shall be required in a plea, but it may commence, the defend- ant says, etc.," held, such provision applied to pleas to the local jurisdic- tion as well as to pleas in bar. Wooddell v. West Virginia Imp. Co., 38 W. Va. 23- 4. Holloway v. Freeman, 22 111. 197; I Tidd's Pr. 639, 640. Contra. Colburn v. Tolles, 13 Conn. 524; Wilcox v. Chambers, 34 Conn. 179. 5. Verification Required. Teasedale v. The Rambler, Bee Adm. 9; Doe v. Roe, 2 Burr. 1046 ; 4 & 5 Anne, ch. 16, gn; Dobbin v. Wilson, 3 N. & M. 260; Davis v. Campbell, 35 Tex. 779; Whittenberg v. Newton, 31 Tex. 474; Knefel v. Williams, 30 Ind. n ; Indi- anapolis R. Co. v. Summers, 28 Ind. 521; Blake v. Nichols, 4 Blackf. (Ind.) 311; Haines v. Gurley, 5 Blackf. (Ind.) 269; Trenton Bank v. Wallace, 9 N. J. L. 83; Nixon v. Schooley, 26 N. J. L. 461; Humphrey v. Whitten, 17 Ala. 30; Prim v. Davis, 2 Ala. 24; Hart v. Turk, 15 Ala. 675; Collier v. Craw- ford, Minor (Ala.) 100; Hall v. Wal- lace, 20 Ala. 438; State v. Middleton, 5 Port. (Ala.) 484; Holden v. Scanlin, 30 Vt. 177; Durand v. Griswold, 26 Vt. 48; Young v. Stringer, 5 Hayw. (Tenn.) 32; Bank of Tennessee v. Jones, i Swan (Tenn.) 391; Reed v. 1. Bonneau v. Dickinson, 12 Ala. 475; Hazzard v. Haskell, 27 Me. 549; Yelverton v. Conant, 18 N. H. 123; Baker v. Brown, 18 N. H. 551; Brig- ham v. Este, 2 Pick. (Mass.) 420; Ilsley v. Stubbs, 5 Mass. 280. Praying Judgment of the Declaration Only is improper. Moffatt v. Van Mul- lingen, 2 Chit. Rep. 539 ; 18 E. C. L. 410; 2 B. & P. i24; Whiting v. Des Anges, 4 B. & L. 678 ; 3 C. B. 910; Davies v. Thompson, 9 Jur. 736 ; 14 M. & W. 161. But where suit was com- menced by the filing and service of a declaration, praying judgment of a declaration was held proper. Shaw v. Dutcher, 19 Wend. (N. Y.) 216. Where Suit is Commenced by Bill, it is held that judgment of the bill should be prayed. Haywood v. Chestney, 13 Wend. (N. Y.) 495. Abatement in Part. Where the mat- ter pleaded went only in part abate- ment of the writ, yet judgment of the whole writ was prayed, it was held proper, for the court could abate the writ in part and let it stand good for the remainder. Powell v. Fullerton, 2 B. & P. 420; Thayer v. Ray, 17 Pick. (Mass.) 166. Several Defendants. Prayer of gen- eral judgment of the writ by one of several defendants pleading mis- nomer was held bad. Webb v. Sam- uel, 2 Miles (Pa.) 201. 2. Mantz v, Hendley, 2 Hen. & M. (Va.) 308. 3. Anonymous, 2 Wils. 302. Prayer for Disability of Plaintiff. Where the ground of abatement is the disability of the plaintiff, a prayer "for judgment of the writ and declaration, and that the same be quashed," is bad; it should be for " judgment whether the defendant should be compelled to answer." West Feliciana R. Co. v. Johnson, 5 How. (Miss.) 276. Defective Service on Trustee. Where a defendant trustee objects to a de- fective service on himself it is proper Prayer, Signature, ABA TEMENT IN PLEADING, and Verification. But this is not required in all jurisdictions. 1 Such an affidavit is for the benefit of the plaintiff, and the requirement of it may be waived by him. 2 If the affidavit is defective, 3 the plaintiff may treat the plea as a nullity and enter judgment for want of a plea. 4 Requisites of Affidavit. The affidavit should state that the plea is true in substance and fact and not merely that it is a true plea. 5 It should be coextensive with the plea and leave nothing to be collected by inference. 6 ' It should strictly agree with the plea, Bremer, Peck (Tenn.) 275; N. Y. Code of Civ. Pro., 513; Marston v. Law- rence, I Johns. Cas. (N. Y.) 97; Rich- mond v. Tallmadge, 16 Johns. (N. Y.) 307; Robinson v. Fisher, 3 Cai. (N. Y.) 99; Smith v. Atlantic Ins. Co., 22 N. H. 21 ; Graham v. Fahnestock, 5 Gill (Md.) 215; Town v. Wilson, 8 Ark. 464; White v. Yell, 12 Ark. 139; Whid- den v. Seelye, 40 Me. 247; 63 Am. Dec. 661; Bancroft v. Eastman, 7 111. 259; King v. Haines. 23 111. 340. Statute of Anne. The Stat. 4 & 5 Anne, ch. 16, n (4), provided that no dilatory plea shall be received unless the party offering such plea do by affidavit prove the truth thereof or show some probable matter to the court to induce them to believe that the fact of such dilatory plea is true. Benevolent Associations Misjoinder. In an action on a beneficiary certifi- cate of a benevolent association al- leged to have been executed by two defendants, one of them cannot set up a misjoinder of defendants unless he presents a plea verified by affidavit de- nying such alleged execution of such certificate. Supreme Lodge A. O. U. W. v. Zuhlke, 30 111. App. 98; 129 111. 298. 1. Rhode Island. A plea in abate- ment for non-joinder of joint promisors need not in Rhode Island be accom- panied by an affidavit of its truth, for in that state the statute 4 & 5 Anne, ch. 16, ii is not among the statutes de- clared in force by the act of 1749, and there is no statute or rule of court re- quiring such an affidavit. National Niantic Bank v. Adams Express Co., 16 R. I. 343. Connecticut. No affidavit of the truth of a plea in abatement is required in Connecticut. Colburn v. Tolles, 13 Conn. 524; Wilcox v. Chambers, 34 Conn. 179. 2. Waiver of Affidavit. Graham v. Ingleby, i Exch. 651; 5 D. & L. 737; Richmond v. Tallmadge, 16 Johns. (N. Y.) 307. 3. Defective Affidavit. Munden v. Duke of Brunswick, 4 C. B. 321; 56 E. C. L. 319; Esdaile v. Truswell, 2 Exch. 312; Richards v. Setree, 3 Price 197; Davidson v. Watkins, 3 Dowl. Pr. Cas. 129 ; Bray v. Haller, 2 Moore 213; Dobbin v. Wilson, 3 N. & M. 260; Fennick v. Grimes, 5 Cranch (C. C.) 603; Edmonson v. Barrell, 2 Cranch (C. C.) 228. 4. White v. Gascoyne, 3 Exch. 36; Rapp v. Elliot, 2 Dall. (U. S.) 184. 5. Dobbin v. Wilson, 3 N. & M. 260. Affidavit to Plea of Non-joinder. Where a defendant pleaded in abatement the non-joinder of a joint contractor, and in his affidavit in support thereof stated that himself and the omitted person were partners during the pe- riod within which the cause of action was alleged to have accrued, but did not show they continued partners down to the time laid in the common counts, the affidavit was held insuf- ficient. Dobbin v. Wilson, 3 N. & M. 260. 6. Poole v. Pembrey, 3 Tyr. 387; I Dowl. Pr. Cas. 693; Esdaile v. Trus- well, 2 Exoh. 312; 17 L. J. Exch. 294. Error in Addition. Where in the title of a plea in abatement the de- fendant described himself as " Charles Frederick Augustus William Sovereign, Duke of Brunswick and Luneberg, sued, etc.," and in the affidavit to the plea he was similarly described, but in the appearance which he had entered the word "sovereign" was omitted, held, plaintiff properly signed judgment treating the plea as a nullity. Munden v. Duke of Brunswick, 4 C. B. 321; 56 E. C. L. 319; 16 L. J. C. P. 311. Residence of Co-contractor. Under 3 & 4 Will. IV, ch. 42, ^ 8, an affidavit in support of a plea in abatement for the non-joinder of a co-contractor with defendant must state the residence of. 29 Judgment ABATEMENT IN PLEADING. and Trial. and variance in the name of a party has been held to render it defective. 1 When annexed to the plea it was held it need not be entitled in the cause* or state the addition of the defendant. 3 It could be made by a third party or the attorney 4 and sworn to before the defendant's attorney. 5 It could not be sworn to before the declaration was delivered. 6 V. JUDGMENT AND TEIAL judgment for Defendant. Where the de- defendant succeeds on a plea in abatement, whether the issue be one of law or of fact, the proper judgment is " that the writ be quashed unless a temporary disability or privilege be pleaded, when it is "that the plaintiff remain without day until, etc." 7 Judgment for Plaintiff on Demurrer. Where the plaintiff succeeds on an issue of law, the proper judgment is "that the defendant answer over," 8 unless it be to matter pleaded puis darrein con- such co-contractor at the time the plea is pleaded. 1. Maybury v. Mftrdie, 5 D. &. L. 360; 12 Jur. 80; Lambe v. Smythe, 10 Jur. 394; 15 L. J. Exch. 287; White v. Gascoyne, 18 L. J. Exch. no; Newton v. Stewart, 15 L. J. Q. B. 384. 2. Prince -v. Nicholson, 5 Taunt. 333; I Marsh. 70. 3. Poole v. Pembrey, 3 Tyr. 387; I Dowl. Pr. Cas. 693. 4. Anonymous, i Chit. Rep. 58; Lum- ley v. Foster, Barnes 344. 5. Horsfall -v. Matthewman, 3 M. & S. 154- Contra. Cooper v. Archer, 12 Price 149. 6. Westerdale v. Kemp, i Tyr. 260; I Dowl. Pr. Cas. 281; Johnson v. Popple- well, 2 C. &. J. 544; 2 Tyr. 715. Sworn to on Same Day. But where de- fendant swore to the affidavit at Liver- pool on the day the declaration was filed in town (London) and before he could have seen it, held, not a nullity so as to entitle plaintiff to sign judgment. Lang v. Comber, 4 East 348. 7. Chitty on PL, p. 466; McKinstry u. Pennoyer, 2 111. 319 ; McCutchen v. McCutchen, 8 Port. (Ala.) 151 ; Black- burn v. Watson, 85 Pa. St. 241; Cush- man v. Savage, 20 111. 330; Sarco v. Clements, 36 Cal. 132. Whether to Writ or Declaration. Whether a plea in abatement is tech- nically to the writ or the declaration, the action should abate if the aver- ments of the plea bring the case with- in a statute on the subject raised there- by. Tiffany v. Spalding, 22 111. 493. One of Two Defendants. Where two defendants are sued and one pleads in abatement and the other in bar, if the plea in abatement is sustained the ac- tion should abate as to the defendant so pleading and be retained for trial as to the other defendant. Foster v. Col- lins, 5 Smed. & M. (Miss.) 259. Plaintiff cannot Reply. Where an issue joined on a plea in abatement is found for the defendant, whether it be an issue of fact or of law, the proper judgment is that the writ be quashed ; and where a demurrer to a plea in abatement is overruled, it is error to give the plaintiff leave to reply, unless there be some statute authorizing it. Clark v. Latham, 25 Ark. 16. 8. Renner v. Reed, 3 Ark. 339; Tur- ner v. Carter, i Head (Tenn.) 520; Cra- vens v. Bryant, 3 Ala. 278; Clark v. Hite, 5 Blackf. (Ind.) 167; Moore v. Morton, i Bibb (Ky.) 234; Ritter v. Hamilton, 4 Tenn. 325; Fitch v. Loth- rop, i Root (Conn.) 192; Trow v. Mes- ser, 32 N. H. 361; Nichols v. Heacock, i Root (Conn.) 286; Bradshaw v. More- house, 6 111. 395; Baker v. Fales, 16 Mass. 147; Fulcher v. Lyon,4Ark. 445; McBee v. State, i Meigs (Tenn.) 122; Lambert v. Lagow, i Blackf. (Ind.) 388. Defendant's Right to Plead Over. Where the court overrules a plea in abatement, the defendant should have leave to answer or plead to the merits. Kendrick v. Davis, 3 Coldw. (Tenn.) 524- Plea Frivolous. When a plea in abatement is stricken out as frivolous, the defendant may answer over. Gib- son v. Laughlin, Minor (Ala.) 182. To Plead Over Instanter. The de- fendant may be ordered by the court to plead over instanter. Cotton v. Rea- vill, 2 Bibb (Ky.) 199. Judgment ABATEMENT IN PLEADING. and Trial. tinuance, when the judgment may be final. 1 Judgment for Plaintiff on Issue of Fact. Where an issue of fact joined on a plea of abatement is found in favor of the plaintiff, the effect of it is an admission of the merits of the plaintiff's claim, and the judgment thereon is final in favor of the plaintiff, and the jury which determines the issue should determine the plaintiff's dam- ages. 2 Tried by Eecord. Where the issue on defendant's plea in abatement of a former recovery is tried by the record and found against the defendant, the proper judgment is "that defendant answer over." Johnston v. Hubbell, Wright (Ohio) 69; Marston v. Law- rence, I Johns. Cas. (N. Y.) 97. Non Pros, if Plaintiff does not Beply. If plaintiff fails to file a replication to defendant's plea in abatement, defend- ant is entitled to a judgment of non fros. Gaston v. Parsons, 8 Port. (Ala.) 469. 1. Hutchinson v. Brock, n Mass. 124; Turner v. Carter, I Head (Tenn.) 520; Renner v. Marshall, I Wheat. (U. S.)2I 5 . Wrong Prayer Judgment Final. Where the defendant improperly com- mences or concludes his plea in bar and it contains matter only pleadable in abatement, or where he pleads in abatement puts darrein continuance \ the judgment may be final. Turner v. Carter, I Head (Tenn.) 520. Final by Statute Massachusetts. In Massachusetts since the act of 1840 a decision on any question arising on a plea in abatement by the superior court or common pleas is final, whether it be upon the face of the rec- ord, as by demurrer or otherwise, or upon the admission of evidence or in- structions to the jury. Such a decision cannot be reviewed in the supreme court. Hamlin v. Jacobs, 99 Mass. 500. 2. Courts of United States Final. Under the provisions of the 22d section of the Judiciary Act of 1789, the decisions or rulings of circuit and district courts of the United States on a plea in abate- ment are final and cannot be reversed by the supreme court. Piquignot v. Pennsylvania R. Co., 16 How. (U. S.) 104. See Mexican Cent. R. Co. v. Pinkney, 149 U. S. 194 ; Chase v. Deming, 42 N.H. 274; Dodge v. Morse, 3 N. H. 232 ; Straus v. Weil, 5 Coldw. (Tenn.) 120; Hollingsworth v. Duane, Wall. (C. C.) 51 ; Myers v. Erwin, 20 Ohio 381 ; Moore v. Morton, i Bibb (Ky.) 234 ; Boston Glass Manufactory v. Landgon, 24 Pick. (Mass.) 49; 35 Am. Dec. 292 ; McCartee v. Chambers, 6 Wend. (N.Y.) 649 ; Ailing v. Shelton, 16 Conn. 436 ; Haighs v. Holley, 3 Wend. (N. Y.) 258 ; Mehaffy v. Share, 2 P. & W. (Pa.) 361 ; Jewett v. Davis, 6 N. H. 518 ; Eichorn v. Le Maitre, 2 Wils. 367; Mechanics, etc.. Bank v. Da- kin, 24 Wend. (N. Y.)4ii; Thompson v. Haislip, 14 Ark. 220 ; Witmer v. Scho- latter, 2 Rawle (Pa.) 359 ; Babcock v. Scott, i How. (Miss.) 100; Rexz/. Shake- speare, 10 East 83; Marsh v. Smith, 18 N. H. 366. Statute allowing Pleas in Abatement and Bar. In Indiana under the pro- visions of the code a defendant may plead in abatement and in bar at the same time. Under such provision, where defendant pleads in abatement only and the issue joined thereon is found against the defendant, the plaintiff is entitled to final judgment and defendant cannot plead over. Thompson v. Greenwood, 28 Ind. 327. After Judgment against him Defendant cannot Plead in Bar. Under the code of Indiana, all defences whether in bar or abatement must be pleaded in the same answer; and where a defendant, sued for goods sold, pleaded in abate- ment the non-joinder of a joint pur- chaser, and this issue was decided against him, held, it was proper to refuse him leave to withdraw his answer and plead in bar. Bond v. Wagner, 28 Ind. 462. Defendant cannot Demur after Issue found against Plea. After the defendant has pleaded in abatement to the jurisdic- tion, raising an issue of non-residence, and that issue has been found against him, it is too late for him to demur. Final judgment should be rendered for plaintiff, and the jury who found on the issue of non-residence should assess plaintiff's damages. Brown r. Illnois Cent. Mut. Ins. Co., 42 111. 366. Final Judgment on Plea in Review. Where defendant in a writ of review 3 1 Waiver of Plea. ABATEMENT IN PLEADING. Waiver of Plea, Burden of Sustaining Plea. The burden of sustaining the plea rests on the defendant. 1 Trial. A plea involving the question of records is to be tried by the court, 2 and only the records referred to in the plea can be ex- amined. 3 Attacking Declaration. If defeated on his plea, defendant cannot attack the declaration. 4 Bad Plea Signing Judgment. It has been held that plaintiff need not demur to a bad plea, but may sign judgment. 5 VI. WAIVER OF PLEA. The right of a defendant to plead in abatement may be lost or waived in various ways. By Pleading to Merits. Pleas in abatement were required to be pleaded before pleas in bar or to the merits, and it was and still pleads in abatement thereof " that the writ has been materially altered since it was sued out," and the jury finds against defendant on this plea, the plaintiff in review. is entitled to judg- ment in chief in his favor. Good v. Lehan, 8 Cush. (Mass.) 301. Whole Plea not Proved. Where a de- fendant, sued in the county court of Rutland, pleaded in abatement that she was not a resident of the county of Rutland, but was a resident of Woodstock in the county of Windsor, and on issue thereon joined the court found the fact "that defendant was not a resident of Rutland," but did not find where she resided, and ren- dered judgment for defendant "that the writ abate," held, on appeal, that this was error, as defendant had not proved the substantial allegations in the plea, and that judgment should have been rendered for the plaintiff in chief for the relief asked in the com- plaint. Vanderburg v. Clark, 22 Vt. 185. Plea Sustained in Part Only. In an action of ejectment the prayer of a plea in abatement was that the writ be quashed as to all the defendants for defects in the service. It was shown the service was defective only as to part of the defendants and was good as to the others, and the action was such that it might by law proceed against the defendant duly served only. Held, the prayer of the plea was too broad and it should be dismissed. Bliss v. Smith, 42 Vt. 198. 1. Another Action Pending. The plea of another action pending is an affirm- ative plea, and the burden of proving it r-ests on the defendant, and he must sustain it by record evidence. Proof of the issuing of a writ for the same cause of action makes a prima-facie case and shifts the burden of proof to plaintiff. Fowler v. Byrd, I Hempst. (U. S.)2I 3 . Non-joinder. On a plea that a joint promisor is not joined with defend- ant in the writ, the burden of proof rests on defendant. Jewett -v. Davis, 6 N. H. 518. Right to Office. Where plaintiff's right to an office is put in issue by a plea in abatement, plaintiff must prove himself such de jure as well as de facto. Davis v. Moflitt, 4 Greene (Iowa) 92. 2. Variance between Writ and De- claration. Where a plea in abatement raises the question of a variance be- tween the writ and declaration, the question is to be determined by the court without the intervention of a jury. Dickinson v. Noland, 7 Ark. 25. Another Action Pending. Where, in an equity action, defendant pleads in abatement the pendency of another suit between the same parties, the question is to be determined by a master in chancery. McEwen v. Broadhead, II N. J. Eq. 129. 3. Pearson v. French, 9 Vt. 349 ; Bowman v. Stonell, 21 Vt. 309 ; Strick- land v. Martin, 23 Vt. 484. 4. Shaw v. Dutcher, 19 Wend. (N. Y.) 216. 5. Plea not Conforming to Rules of Pleading. Pleas in abatement are re- quired to be precisely accurate in form; and where such a plea does not con- form to the rules established as to such pleas, the plaintiff is not compelled to demur to it, but may treat it as a nullity and sign judgment. Anony- mous, Hempst. (U. S.) 215. Waiver of Plea. ABATEMENT IN PLEADING. Waiver of Plea. is the rule in many jurisdictions that by pleading to the merits either before or at the same time he pleaded in abatement a defendant lost his right to plead in abatement. 1 So, too, a prior plea in abatement is waived by a subsequent plea to the merits.* Affidavit of Merits Going to Trial. Filing an affidavit of merits 3 or 1. Reagan v. Irvin, 25 Ark. 86 ; Johnson v. Killian, 6 Ark. 172; Odle v. Floyd, 5 Ark. 248 ; Butts v. Grayson, 14 Ark. 445; Bacon v. Weston, II Cush. (Mass.) 164 ; Plantation No. 9 v. Bean, 40 Me. 218 ; Pattee v. Lowe, 35 Me. 121 ; Gilbert v. Tramell, 2 Coldw. (Tenn.) 282 ; Allen v. Reed, 66 Tex. 13 ; Drake v. Brander, 8 Tex. 351 ; Fugate v. Glasscock, 7 Mo. 577 ; Ferguson v. Wood, 23 Tex. 177 ; Burchard v. Record (Tex., 1891), 17 S. W. Rep. 241 ; Washington, etc., Tel. Co. v. Hobson, 15 Gratt. (Va.) 122 ; Palmer v. Green, I Johns. Cas. (N. Y.) 101 ; Anoymous, 3 Cai. (N.Y.) 103 ; Hastings v. Bolton, i Allen (Mass.) 529 ; Foot v. Knowles, 4 Met. (Mass.) 386 ; Simonds v. Parker, I Met. (Mass.) 508 ; Wolcott v. Mead, 12 Met. (Mass.) 516 ; Wilson v. Hamil- ton, 4 S. & R. (Pa.) 238 ; Clymer v. Thomas, 7 S. & R. (Pa.) 181 ; Jones v. Cincinnati, etc., R. Co., 14 Ind. 89; New Albany, etc., R. Co. v. Wilson, 16 Ind. 402 ; State v. Ruhlman, in Ind. 17; Keller v. Miller, 17 Ind. 206 ; Hop- wood v. Patterson, 2 Oregon 49 ; Del- reauline v. Boisneuf, 4 Har. & M. (Md.)4is; Kerr v. Willetts, 48 N. J. L. 78 ; Bliss v. Burnes, McCahon, (Kan.) 91 ; Chaffee v. Ludeling, 34 La. Ann. 962; Silvernagle v. Fluker, 21 La. Ann. 188 ; Simmons v. Thomas, 43 Miss. 31 ; 5 Am. Rep. 470 ; Green v. Craig, 47 Mo. 90 ; Hatry v. Shuman, 13 Mo. 547 ; Brown v. Powell, 45 Ala. 149 ; Hartz/. Turk, 15 Ala. 677; Lyman v. Central Vt. R. Co., 59 Vt. 167; Papke v. Papke, 30 Minn. 260 ; French v. Donohue, 29 Minn, in; Baltimore, etc., R.Co. v. Harris, 12 Wall. (U.S. )6s: Cook v. Burnley, n Wall. (U.S.) 659 ; Dowell z'.Cardwell, 4Sawy.(U.S.) 217; Spencer v. Lapsley, 20 How. (U. S.) 264; Fen- wick v. Grimes, 5 Cranch (C. C.) 603 ; Sheppard v. Graves, 14 How. (U. S.) 512 ; Bayreau v. Campbell, McAll. (U. S.) 119. Rule not Changed by Pleas by Answer. The statute of Massachusetts au- thorizing pleas in abatement to be made by answer does not extend a defendant's time for filing such a plea, nor does it authorize him to answer in i Encyc. PI. & Pr. 3. 33 abatement and to the merits at the same time and in the same answer. Pratt -v. Sanger, 4 Gray (Mass.) 84. Due Order of Pleading. Where a petition apparently shows jurisdiction, the question of want of jurisdiction can only be raised by a plea in abate- ment ; and under the provisions of article 1262 of the Texas Revised Statutes, requiring the defendant to file his pleadings in due order of pleading, such a plea must be filed before an answer on the merits or it is too late. Hoffman v. Cleburne Bldg., etc., Assoc., 2 Tex. Civ. App. 688. Death before Action brought Waived. Where the defendant has pleaded the general issue after the death of the plaintiff has been suggested, her per- sonal representative substituted, and the declaration amended accordingly, it is too late to raise the objection that plaintiff died before the action was originally brought, as this objection could be taken only by a plea in abate- ment and is waived by pleading to ths merits. Mills v. Bland, 76 111. 381. No Reply Necessary. After pleading in bar, a plea in abatement for non- joinder is a nullity and requires no response. Lewis v. State, 65 Miss. 468. 2. Hart v. Turk, 15 Ala. 675 ; Smith v. State, 19 Conn. 493 ; Chapman v. Davis, 4 Gill (Md.) 166 ; Sheppard v. Graves, 14 How. (U.S.) 505 ; Gilmore v. Howland, 26 111. 200 ; Burnham v. Webster, 5 Mass. 266 ; Wade v. Kelly, 2 Stew. (Ala.) 448 ; Hotchkiss v. Thompson, i Morr. (Iowa) 156 ; Davis v. Dickson, 2 Stew. (Ala.) 370 ; Robert- son v. Lea, i Stew. (Ala.) 141. Right Reserved to Appeal Waived. Where, on the decision of a demurrer, the right is reserved to a defendant to' ask the opinion of an appellate court on a plea in abatement interposed by him, such right is waived and lost by the defendant's filing a plea to the merits. Pattee v. Harrington, n Pick. (Mass.) 221. 3. Walpole v. Gray, n Allen (Mass.) 149 ; Whipple v. Rogerson, 12 Gray (Mass.) 347. Waiver of Plea. ABATEMENT IN PLEADING. Waiver of Plea. going to trial on the merits without objection has been held a waiver of a plea in abatement. 1 But pleading over after demurrer has been held not a waiver. 2 Pleading Out of Order. Pleas in abatement should be pleaded in due order, and by pleading a plea subsequent in the order of plead- ing it has been held that the right a plea naturally preceding it in the order of pleading is waived. 3 So, too, it has been held that where a defendant has once pleaded in abatement, he can after- wards only plead in bar. 4 Withdrawing Plea to Merits. After a plea to the merits the defend- ant cannot withdraw it and plead in abatement, except by leave of court, which will only be granted in general under very special circumstances. 5 1. Cannot Object in Appeal. By going to trial on the merits without objection, a defendant waives a plea in abate- ment and cannot afterwards object that it was not disposed of, or, if it was passed on, to the ruling of the court on it, to which no exception was taken. Starr v. Wilsoq, I Morr. (Iowa) 438 ; Cook -v. Stuben County Bank, i Greene (Iowa) 447. Trial on Merits Waiver. A defence which under the old practice was only available by way of plea in abatement must, under the North Carolina Code, be set up in some way by answer and insisted on before a trial on the merits is had, and if it be not so pleaded it will be considered as waived. Hicks v. Beam, 112 N. Car. 642. 2. In Bar after Decision of Demurrer to Plea. Where, on demurrer to a defend- ant's plea in abatement, judgment is rendered in favor of the plaintiff, a subsequent plea in bar by defendant is not a waiver of such plea in abate- ment. Delahay v. Clement, 4 111. 201. 3. Brown v. Peevey, 6 Ark. 37 ; Taylor -v. Kelley, 13 Ark. 101; Mitchum v. Droze, n Rich. (S. Car.) 196. 4. Houck v. Scott, 8 Port. (Ala) 169; Cook v. Yarwood, 41 111. 115. But this does not apply where the declaration is amended after plea ; in such case it has been held defendant may again plead in abatement. Mills v. Bishop, Kirby (Conn.) 6. 5. Meggs> v. Shaffer, Hard. (Ky.) 70; Ripley v. Warren, 2 Pick. (Mass.) 593; Stone v. Proctor, 2 D. Chip. (Vt.) 114; Keller v. Miller, 17 Ind. 206; Riddle v. Stevens, 2 S. &. R. (Pa.) 537; Clymer v. Thomas, 7 S. & R. (Pa.) 178; Palmer v. Evertson, 2 Cow. (N. Y.) 417; Clapp -v. Balch, 3 Me. 216; Engle v. Nelson, I Pa. St. 442; Hart v. Turk, 15 Ala. 675; Betzaldt v. American Ins. Co., 47 Fed. Rep. 705. Power of Court. The court has power in its discretion to allow a plea in bar or to the merits to be with drawn and a plea in abatement put in. Talby v. Hamilton, i Hall (N. Y.)222; Evans v. Davenport, 4 McLean (U. S.) 76; Kern v. Huiderkoper, 103 U. S. 485- Contra. Bank of Columbia -v. Scott, i Cranch (C. C.) 134; Yeatman v. Henderson, I Pittsb. (Pa). 20. What is Withdrawal. Filing a plea in abatement by special leave of court is in effect the withdrawal of a former plea to the merits. Kern v. Huide- koper, 103 U. S. 485. Not Allowed although in Due Time. The defendant will not be allowed to withdraw his answer pleading the general issue and put in a plea of coverture in abatement, although such plea in abatement is presented in due time, and defendant swears that the general issue was pleaded without his knowledge or consent by a person whom he never intended to retain as his attorney. Anonymous, 3 Cai. (N.Y.) 103. Unknown at Time of Plea to Merits. After an answer on the merits is filed, the court has no power to allow a plea in abatement to the effect that neither party lived in the county where the writ w r as returnable, although plain- tiff is described in the writ as a resi- dent of that county, and the fact that he was not such a resident was not known to the defendant at the time his answer on the merits was filed. Hastings v. Bolton, i Allen (Mass.) 529. 34 Waiver of Plea. ABATEMENT IN PLEADING. Waiver of Plea. Exception to Rule. In many of the states the rule that matter in abatement must be pleaded and disposed of before matter in bar does not obtain, and in them the defendant may plead matter in abatement and to the merits in the same answer, and the one is not held to be a waiver of or to overrule the other. 1 But it is still held that objections in abatement are waived if not taken by answer or demurrer. 2 Where pleas in abatement and to the merits are allowed at the same time, it has been held that there should be a separate decision or verdict on the pleas in abate- ment. 3 federal court may be raised in the an- swer and joined therein with other matters of defence, and not be set up primarily by a separate plea in abate- ment. Kingman v. Holthaus, 59 Fed. Rep. 305. And this is the same also as to other defences in abatement. Chris- tian -v. Williams, in Mo. 429; Little v. Harrington, 71 Mo. 390, overruling Rippstein v. St. Louis, etc., Mut. L. Ins. Co., 57 Mo. 86, and Fordyce v. Hathorn, 57 Mo. 120. Wisconsin. In Wisconsin, under the provisions of the Code, a defendant may plead in abatement at the same time with a plea on the merits, and the rule that the right to plead in abatement is lost, and a previous plea in abatement waived, by a plea to the merits, does not obtain there. Free- man v. Carpenter, 17 Wis. 126; Dutcher v. Dutcher, 39 Wis. 651. Washington. A plea in abatement is not necessary in common-law actions to raise the question of the jurisdiction of the United States Circuit Court, where the state practice dispenses with the necessity of such plea before an- swering on the merits. Green v. Ta- coma, 53 Fed. Rep. 562. Rhode Island. In Rhode Island a plea in abatement is not waived by fil- ing at the same time a plea to the merits or an affidavit of merits. Gard- ner v. Janes, 5 R. I. 235. Georgia. By the provision of the Code of Georgia a plea to the merits is not a waiver of a plea in abatement. Jernigan v. Carter, 51 Ga. 232. 2. N. Y. Code of Civ. Pro. 499; Kromer v. Reynolds, 19 N. Y. Wkly. Dig. 383; Holbrook v. Baker, 16 Hun (N. Y.) 176; Briggs v. Carroll, 50 Hun (N. Y.) 586; Selye v. Zimmer, 15 N. Y. Supp. 881; 61 Hun (N. Y.)623; DePuy v. Strong, 37 N. Y. 372; Garvey v. New York L. Ins., etc., Co. (Supreme Ct.), 14 N. Y. St. Rep. 909. 3. Separate Findings. Where it is 1. New York. In New York the pro- visions of the Code allow a defend- ant to plead as many defences as he chooses in one answer. The effect of this is practically to abolish the dis- tinction between pleas in bar and in abatement, so far as the order of pleading them is concerned, so that by pleading to the merits a defendant does not waive a plea in abatement contained in the same answer. N. Y. Code of Civ. Pro. 507; Sweet v. Tut- tle, 14 N. Y. 465; Gardner v. Clark, 21 N. Y. 399; Merchants' Nat. Bank v. Macnaughton, i Abb. N. Cas. (N. Y.) 293; Bridge v. Payson, 5 Sandf. (N. Y.) 210; Hamburger v. Baker, 35 Hun (N. Y.) 455. Indiana. In Indiana it was held that matter in abatement could be pleaded at the same time as matter in i>ar and was not overruled thereby. Thompson v. Greenwood, 28 Ind. 327; Bond v. Wagner, 28 Ind. 462. But the Revised Stat. of 1881, 365, restored the old rule and requires matter in abatement to be pleaded be- fore matter in bar. Iowa. The Iowa Code of 1873, 2732, provides that matter of abate- ment may be stated in the answer or reply, either together with or without causes of defence in bar, and no one of such causes shall be deemed to over- rule the other; nor shall a party after a trial on matter in abatement be al- lowed in the same action to answer or reply matter in bar. Arkansas. Under the Arkansas Code the rule of the common law that matter in abatement is waived by pleading in bar does not prevail, and the two defences may be set up in the same answer. Erb v. Perkins, 32 Ark. 428; Grider v. Apperson, 32 Ark. 332. Missouri. Under the provisions of the Missouri Code, which contemplate but one answer, the question of the citizenship of the plaintiffs suing in a 35 Pleas PuisDarrein ABA TEMENT IN PLEADING. Continuance. By Demnrring.-By demurring it is held that a defendant waives the ri<*ht to plead in abatement. 1 By Laches or Agreement.-The right to plead in abatement may also be lost or waived by laches* or by an agreement " to plead and try at the next term." 3 After imparlance. It is held too late to so plead after a general imparlance. 4 But after a special imparlance it has been allowed. 5 Proceeding in Cause. The right to plead in abatement has been held to be lost by proceeding in the cause and not raising the objection." Plaintiff'! Demurrer. By demurring to a plea in abatement it has been held the objection that it was filed too late is not waived ; 7 but the contrary has also been held. 8 VII. PLEAS PTTIS DABBJEIN CONTINUANCE Matter Arising after issue. Where matter of abatement arises or occurs after issue joined it may, and must, to be available, be pleaded by plea puis darrein continuance, and may be so pleaded although the right to plead allowed the defendant by the practice to plead several pleas, and hence the rule that pleading to the merits waives pleas in abatement does not prevail, the jury, where the case is tried before them, should be instructed to find separately on the issues in abatement and in bar. Gardner v. Clark, 21 N. Y. 399- First Disposed of by Court. Although the Georgia Code provides that a plea to the merits is not a waiver of a plea to the jurisdiction, it should be so con- strued as to require the plea to the jurisdiction to be disposed of first. Jernigan v. Carter, 51 Ga. 232. 1. Fergerson v. Rawlins, 23 111. 69; Knowlton v. Culver, i Chand. (Wis.) 16; Foreman v. Gibson, 15 Ark. 206; Indiana, etc., R. Co. v. Scearce, 23 Ind. 223; Meyer v. Smith (Tex. Civ. App., 1893). 21 S. W. Rep. 995. 2. Stiles v. Homer, 21 Conn. 507; York v. Gregg, 9 Tex. 85; Smith v. State, 19 Conn. 493. 3. Shaw v. Bowen, i Overt. (Tenn.) 249. 4. Webster v. Byrnes, 32 Md. 86; Roberts v. Sherman, 28 111. 79; Hinck- ley v. Smith, 4 Watts (Pa.) 433; Chamberlain v. Hite, 5 Watts (Pa.) 373; Holloway v. Freeman, 22 111. 202; Coates v. McCamm, 2 Browne (Pa.) 173; McCarney v. McCamp, i Ashm. (Pa.) 4; Chambers v. Haley, Peck (Tenn.) 159; Martin v. Com., i Mass. 347; Archer v. Claflin, 31 111. 306; Witmer v. Schlatter, 15 S. & R. (Pa.) 150; Coffin v. Jones, 5 Pick. (Mass.) 61; Wyman v. Dorr, 3 Me. 186; Otis v. Ellis, 78 Me. 75; Jennisonz'. Hopgood, 2 Aik. (Vt.) 31. Cannot, although Declaration Amended. Where, after a general imparlance and ple'a of the general issue, the plain- tiff amends his declaration on leave ob- tained, the defendant cannot plead in abatement a variance between the writ and amended declaration, which vari- ance existed between the writ and original declaration. Chapman v. Davis, 4 Gill (Md.) 166. Ignorance of Ground of Abatement no Excuse. When a cause of abatement arises after the first day of the term, defendant must inform himself of it and file his plea within a reasonable time or it is too late. Ignorance of the cause of abatement will not justify the filing of the plea after the proper time. James v. Morgan, 36 Conn. 348. 5. Purple v. Clark, 5 Pick. (Mass.) 206; McCarney v. McCamp, i Ashm. (Pa.) 4; Coates v. McCamm, 2 Browne (Pa.) 173- Removal of Cause. After removing an action to the Supreme Judicial Court in Massachusetts pursuant to the provisions of the statute of 1840, ch. 87, 3, a defendant may plead in abatement. Colt v. Partridge, 7 Met. (Mass.) 570. 6. State v. Faust, 7 Coldw. (Tenn.) 109; Spalding v. Watheh, 7 Bush (Ky.) 659; Otis v. Warren, 14 Mass. 239; Barstow v. Fossett, n Mass. 250. 7. Jennison v. Hopgood, 2 Aik. (Vt.) 3 i. 8. Northum v. Kellogg, 15 Conn. 569- Pleas -svuVvwi* ABATEMENT IN PLEADING. Continuance. it would have been lost under the rules of pleading had it arisen before issue. 1 Supplemental Answer. Under many of the codes such matter is to be set up by supplemental answer.'- 2 Pleaded as Soon as Known. Such matter should be pleaded as soon as it comes to the knowledge of the party. 3 It may be pleaded at a trial if not known until then, 4 but not after verdict. 5 Waives other Pleas Pleas puis darrein continuance are a waiver of all other pleas, which are considered as stricken from the rec- ord, and the party pleading them is compelled to stand on them alone as though he had pleaded no other plea. 6 1. Straight v. Hanchett, 23 111. App. 584 ; Gaines v. Conn, 2 Dana (Ky.) 231 ; Bradley v. Welch, i Munf. (Va.) 284; Hunt v. Wilkinson, 2 Call. (Va.) 49; i Am. Dec. 534 ; Lacroix v. Mac- quart, i Miles (Pa.) 42 ; Wilson v. Hamilton, 4 S. & R. (Pa.) 38; Hos- tetter v. Kaufman, n S. & R. (Pa.) 146; Yeaton v. Lynn, 5 Pet. (U. S.) 224; Good v. Davis, Hempst. (U.S.) 16 ; Thompson v. U. S., 103 U. S. 480; Leavitt v. School Dist. No. 9, 78 Me. 574; Jennings v. Dockham (Mich., 1894), 58 N. W. Rep. 66. 2. N. C. Code C. P. 136; Revd. St. Ohio, 5119, L. 1880; Revd. St. Wis. 2787, L. 1878 ; N. Y. Code Civ. Pro. 544; Cal. Code C. P. 464 ; Neb. Code C. P. 149 ; Bullitt's Ky. Code, 135 ; Kansas Civ. Pro. 144; low.a Code of 1886, 2731 ; Ind. Revd. St. 399, L. 1881 ; Colo. Code C. P. 74 ; Oregon Code C. P. 105. Ejectment. Any rights which may accrue to a defendant subsequent to the commencement of an action of ejectment must be alleged by a plea puis darrein continuance. Jennings v. Dockham (Mich., 1894), 58 N. W. Rep. 66. Eeal Action. If during the pendency of a real action the title and right of possession pass from plaintiff and be- come vested in defendant, this may be pleaded specially to bar the further maintenance of the action, but cannot be pleaded in bar of the suit generally. Leavitt v. School District No. 9, 78 Me. 574. No Evidence of Fact not Pleaded. In a mandamus proceeding to compel a township clerk to perform an official duty, he pleaded in his answer that was properly rejected because such ap- pointment had not been set up by plea puis darrein continuance. Thompson v. U. S., 103 U. S. 480. Disability of Plaintiff to Sue. If a dis- ability on the part of the plaintiff to sue exists, and existed at the time the action was commenced, the plaintiff may be nonsuited at the trial because of it; but if the disability arose during the pendency of'the action, it must be pleaded by plea puis darrein continu~ ance, and if not so pleaded is waived. Yeaton v. Lynn, 5 Pet. (U. S.) 224. 3. After Continuance. Where new matter of abatement occurs after a continuance, defendant should plead it in abatement as soon as it comes to his knowledge, and not allow a continu- ance to intervene before doing so ; but the court may for special reasons allow it to be pleaded nun c pro tune after an intervening continuance. Wilson v. Hamilton, 4 S. & R. (Pa.) 238 ; Hos- tetter v. Kaufman, u S. & R. (Pa.) 146. 4. At Trial. In an action tried by jury the refusal of the presiding justice, after the case had been opened to the jury, to allow defendant's counsel to file a supplemental pleading setting up a release made since the last con- tinuance, and without the knowledge of the attorney for either party, but which had come to the knowledge of defendant's attorney on the preceding day, is erroneous, and his action in so refusing will be reversed on appeal. Seehorn v. Big Meadows, etc., Co., 60 Cal. 240. 5. After Verdict or Eeport. After a verdict or report of referee a defend- ant cannot plead matter of abatement he had resigned the office before pro- puis darrein continuance, because the defendant has no day in court. Alex- ander z/. Fink, 12 Johns. (N. Y.) 218. 6. Spafford v. Woodruff, 2 McLean (U. S.) 191 ; Wisdom v. Williams, cess was served on him. At the trial he offered in evidence proof that a successor to him in the office had been appointed. Held, that such evidence 37 168916 Implication, etc. ABA TEMENT IN PLEADING. Replication, etc. Certainty. Great certainty and precision are required in these pleas. 1 They should show that the matter arose since the last continuance, 2 and state the time when it arose. 3 Judgment. If the issue on a plea puis darrein continuance is found against the defendant, the judgment is peremptory and final. 4 VIII. REPLICATION, ETC. Same Bules apply to Plaintiff. In relation to pleas in abatement the same rules apply to the plaintiff as to a defendant, and when plaintiff pleads in abatement to a cause of action set up by defendant he must observe those rules in his plea. 5 Hempst. (U. S.) 460 ; Wallace v. Mc- Connell, 13 Pet. (U. S.) 136 ; Elliott v. Teal, 5 Sawy. (U. S.) 188 ; Good v. Davis, Hempst. (U. S.) 16 ; Straight v. Hanchett, 23 111. App. 584. Although Several Pleas Allowed. Pleas puis darrein continuance by oper- ation of law supersede all other pleas and defences, and the parties must settle the pleadings de novo as though no other pleas had been filed. These rules of the common law are in force in and not affected by the Practice Act of Illinois allowing defendant to plead as many matters of fact in several pleas as he deems necessary, and to file addi- tional pleas any time before final judg- ment. Straight v. Hanchett, 23 111. App. 584. 1. Spafford v. Woodruff, 2 McLean (U. S.) 191 ; Field v. Coppers, 81 Me. 36 ; Augusta v. Moulton, 75 Me. 551 ; Templeton v. Clary, I Blackf. (Ind.) 288 ; Gileson v, Bourland, 13 111. App. 352 ; Straights. Hanchett, 23 111. App. 534. If Bad, Repleader Allowed. Great certainty is required in pleas puis darrein continuance both in substance and form; and where such a plea sets up a release of the cause of action since issue joined, but fails to state the place where the release was made, and the day of the last continuance, or even that there had been any continuance, it is bad on demurrer. Where such a plea is held bad on de- murrer a repleader may be allowed on terms. Field v. Coppers, 81 Me. 36. 2. Should show Day of Last Continuance. Great certainty is required in pleas puis darrien continuance, and if the day of the last continuance is not shown the defect is fatal. Augusta v. Moulton, 75 Me. 551. Stating Defense Arose since Continuance. Where a plea/wi'j darrien continuance only states generally that the defense arose since the last continuance, with- out any further details and without the proper conclusion and verification, it is defective. Gileson v. Bourland, 13 111. App. 352. Where matter of defence set up in a plea arose after the commencement of the suit it cannot be pleaded in bar of the action generally, but must be pleaded as to the further maintenance of the suit ; and where it arises after pleas pleaded and issue joined it can only be pleaded puis darrien continu- ance. Such a plea must show the de- fense arose after the last continuance, and must meet the same requisites as to certainty, etc., as a plea in abate- ment. Straight v. Hanchett, 23 111. App. 584. Need not show Arose since Continuance. Where a plea in abatement alleged "that pending the writ, etc., the plaintiff had married, and that her husband was still living," it cannot be set aside on motion for not ex- pressly alleging the coverture to have pccurred puis darrein cohtinu- ance, because the time of the alleged marriage was since the last continu- ance. Templeton v. Clary, I Blackf. (Ind.) 288. 3. Pleas in abatement puis darrein continuance are required to be stated with great certainty, the matter of defense must be clearly and specific- ally stated, and the time when it arose. Spafford v. Woodruff, 2 Mc- Lean (U. S.) 191. 4. Renner v. Mashall, i Wheat. (U. S.)2I 5 . 5. Defendant's Offset or Counter-claim. Where defendant's answer sets up a set-off or other claim which may con- stitute an independent cause of action, the same rule applies thereto as to a complaint, to wit : if there be a defect Keplication, etc. ABA TEMENT IN PLEADING. Implication, etc. Demurrer. If the plaintiff desires to test the legal sufficiency of defendant's plea in abatement, he must demur thereto. 1 A gen- eral demurrer is sufficient, and a special demurrer is not usually required. 2 On such demurrer it is held defendant cannot take advantage of defects in the declaration. 3 Waiver. By taking issue on a plea in abatement plaintiff has been held to waive defects in its verification. 4 But where the plea is a nullity, it is held that no act of apparent acquiescence is a waiver of objections to it. 5 Defeating Plea without Replication. I n some cases a plaintiff has been allowed to practically defeat a plea in abatement without any rep- lication by showing on the trial facts which rendered it nugatory. 6 But this is not always allowed. 7 of parties, and such defect be apparent on the face of the answer, plaintiff may take advantage of it by demurrer; but if not apparent on the face of the an- swer, plaintiff must take advantage of it by plea. Talmage v. Bierhause, 103 Ind. 270. 1. Brooks v. Patterson, i Johns. Cas. (N. Y.) 328; Rex v. Cooke, 2 B. & C. 618; 9 E. C. L. 201; 4 D. & R. 114; Rex v. Clarke, i D. & R. 43; Ralph v. Brown, 3 W. & S. (Pa.) 395. Stricken Out on Motion. If no ground for abating the suit is presented by a plea in abatement, it may be stricken out on motion. Pridgen v. Andrews, 7 Tex. 461. 2. Clifford v. Cony, I Mass. 495; Mantz -v. Hendley, 2 Hen. & M. (Va.) 308; Hart v. Turk, 15 Ala. 675 ; Shaw v. Dutcher, 19 Wend. (N. Y:) 216 ; Lloyd v. Williams, 2 M. &. S. 484. Special Demurrer in United States Courts. Where the ground of demurrer is that a plea contains matter in bar, but begins and ends in abatement, it should be raised by special demurrer in the United States courts and not by general demurrer. Deshler v. Dodge, 16 How. (U. S.) 622. 3. Defective Service. Where a plea in abatement to the service of a writ is demurred to, the demurrer does not reach back so as to enable the defend- ant to take advantage of a defect in the declaration. Bent v. Bent, 43 Vt. 42. 4. King v. Haines, 23 111. 340. 5. Plea a Nullity. No act of a plain- tiff in apparently acquiescing in a plea in abatement will be construed into a recognition of it where the plea is a nullity. Garratt v. Hooper, I Dowl. Pr. Cas. 28. 6. Death of Person not Joined. Where defendant pleaded in abatement the non-joinder of a person who was the partner of plaintiff and jointly inter- ested with plaintiff in the cause of ac- tion in suit, and alleged he was living at the commencement of the action, it was held that plaintiff could at the trial and without reply defeat this plea by proof that such person was dead and the plaintiff owned the entire cause of action; that as the object of the plea was to give a better writ and so protect defendant by a correct judgment, he obtained full protection by the proof of such facts on the trial. Groot v. Agens, 107 N. Y. 633. Ratification of Agent's Act. Where defendant pleads in abatement in an action on an attachment bond on the ground that the bond was not executed by the plaintiff, but does not deny that the suit was commenced by the author- ity of the plaintiff, the plea is nega- tived by the plaintiff appearing and prosecuting the suit. Dove v. Martin, 23 Miss. 588. Substitution of New Sureties. In an attachment proceeding the defendant pleaded in abatement that the sureties on the bond filed by plaintiff were in- solvent, and thereafter the court on plaintiff's motion allowed plaintiff to substitute other sureties and then struck out defendant's plea in abate- ment. Held proper, as substituting a new bond was a full protection of de- fendant's rights, and when filed it re- lated back to the commencement of the proceedings. Shaw v. Trunsler, 30 Tex. 390. 7. Offer to give New Bond. Where defendant pleads in abatement for the want of the giving of a bond by a non- 39 In Equity. ABATEMENT IN PLEADING. In Equity. IX. IN EQUITY Same as at Law. In equity, pleadings in abate- ment are practically the same as at law and governed by the same principles. 1 Construed as at Law. They are construed with the same strictness as pleas at common law, and must be verified. 2 They must be clear, certain, and definite. 3 The pendency of a suit in a foreign state or country is not a good plea in abatement in equity any more than it would be at law. 4 Must Raise Objections by Demurrer or Answer. Objections which tend to abate the suit must be raised by plea in abatement or demurrer, or they are deemed waived. 5 The question of the pendency of another suit must be so raised;** also that the suit is prematurely brought ; r resident, the subsequent offer to give a valid bond does not avoid the plea. Cummins v. Cassily, 5 B. Mon. (Ky.) 74- Bringing in Omitted Persons. Where, after defendant pleads in abatement for non-joinder of defendants, the plaintiff amends by summoning the persons named in the plea, yet after- wards discontinues as to such persons, this does not avoid the plea and it still remains in force. Wilson v. Nevers, 20 Pick. (Mass.) 20. 1. They are called pleas in the na- ture of pleas in abatement, and are divided into those to the jurisdiction, to the person of the plaintiff or de- fendant, and to the bill or the frame of the bill. And those to the bill or frame of the bill are divided into and include another action pending, want of proper parties, multiplicity of suits, and multifariousness. Story's Eq. PI. 710, 722, 735. 2. Burk v. Brown, 2 Atk. 399 ; Dudgeon v. Watson, 23 Fed. Rep. 161; Beck v. Beck, 36 Miss. 72. 3. A plea in abatement to the juris- diction of a court of general jurisdic- tion must allege that the court has not jurisdiction of the subject, and show by what means it is deprived of it, and also show what court has jurisdic- tion. Story Eq. PI. 715. To Jurisdiction. A plea to the juris- diction, alleging as ground therefor " that the subject-matter of the suit is not cognizable in any municipal court of justice," is bad, being in fact a plea in bar and not a plea to the jurisdic- tion in abatement. A plea to the juris- diction of a particular court must show a remedy to the party in some other court, but this plea shows there is no remedy in any court, and is bad as a plea to the jurisdiction. Nabob of Arcot v. East India Co., I Ves. Jr. 371, 3 Bro. C. C. 292. 4. Dillon v. Alvares, 4 Ves. 357 ; Foster v. Vassall, 3 Atk. 590; Houl- ditch v. Donegall, i Sim. & Stu. 491; Peruvian Guano Co. v. Bockwoldt, 23 Ch. Div. 225; Lynch v. Hartford F. Ins. Co., 17 Fed. Rep. 627; McHenry v. Lewis, 21 Ch. Div. 202; Scott v. Rand, 118 Mass. 215; Mutual L. Ins. Co. v. Brune, 96 U. S. 588; Urlin v. Hudson, ii Vern. 332; Way v. Bragaw, 16 N. J. Eq. 213; 84 Am. Dec. 147; Tanseyw. McDonnell, 142 Mass. 220. Stay of One Suit. The pendency of a suit in another state between the same parties and for the same cause of ac- tion cannot be pleaded in abatement of a suit in this state {New Jersey). The defendant's remedy is to procure a stay of proceedings until the suit in the foreign jurisdiction is discon- tinued. Kerr v. Willetts, 48 N. J. L. 70; Hadden v. St. Louis, etc., R. Co., 57 How. Pr. (N. Y. Supreme Ct.) 390; Nichols v. Nichols, 12 Hun (N. Y.) 428. 5. Story Eq. PI. 708; Dodge v. Perkins, 4 Mason (U. S.) 435; Living- ston v. Story, ii Pet. (U. S.) 393; Pierce v. Feagans, 39 Fed. Rep. 587; Hoyt -v. Hoyt, 58 Vt. 538. 6. Another Action. The pendency of another suit between the same parties for the same cause of action in the same court of equity or some other court of equity must be alleged and brought up by plea; it cannot be raised by answer. Battell v. Matot, 58 Vt. 271; Pierce v. Feagans, 39 Fed. Rep. 587; Buscher v. Knapp, 107 Ind. 340. 7. Debt not Due. The defence that a suit is prematurely brought is properly raised by answer in equity; and where an attachment in the suit has been de- feated by a plea in abatement on the 40 In Equity. ABATEMENT IN PLEADING. In Equity. that the plaintiff is insane ;* that proper parties are not brought in 8 unless they are necessary parties ; 3 that plaintiff has no interest in the matter of the suit, 4 or no standing in court ; 5 and that plaintiff has an adequate remedy at law. 6 Cannot Withdraw Answer. A defendant in equity cannot withdraw his answer and file a plea in abatement without leave of court. 7 ground that the debt was not due, there can be no decree for the debt where the prematurity of the suit is relied on as a defence in the answer in the suit. Pigue v. Young, 85 Tenn. 263. 1. Insanity. The objection that a plaintiff by reason of mental unsound- ness is incapable of bringing or main- taining a suit must in equity be taken by plea in the nature of a plea in abatement and cannot be raised by answer. Hoyt v. Hoyt, 58 Vt. 538. 2. Proper Parties. In equity, where the non-joinder of one who might be made a party does not operate to the prejudice of other parties to the suit, the objection to such non-joinder must be taken by plea; it cannot be raised for the first time at the hearing. Griffin v. Lovell, 42 Miss. 402; Snook v. Pear- sail, 95 Mich. 534. 3. Necessary Parties. The provision of the N. Y. Code that objections not taken by demurrer or answer are deemed waived apply in general to a defect of parties, but where by reason of such defect a complete determina- tion of the matter cannot be had with- out prejudice to the rights of others, such defect is not waived by the omis- sion to raise it by demurrer or answer, and may be taken advantage of on ap- peal. Bear v. American Rapid Tel. Co., 36 Hun (N. Y.) 400; Osterhoudt v. Ulster County, 98 N. Y. 239; Reed v. Hoyt, 51 N. Y. Super. Ct. 121 ; ajfd 109 N. Y. 659. 4. Interest in Subject-matter. If, in a suit brought by two plaintiffs, one of them has no interest in the subject- matter of the suit, the objection may be taken by a plea in the nature of a plea in abatement; and if the plea is shown to be true, it is a good defence to the whole suit. Makepeace v. Hay- thorne, 4 Russ, 244. 5. Plaintiffs Standing in Court. The question of the standing in court of a plaintiff who alleges sufficient facts to give him such standing should be raised by a plea in the nature of a plea in abatement, and not by aver- ments in the answer to the effect that the facts as alleged by the plaintiff are untrue and that the bill is not filed in good faith. Mazet v. Pittsburgh, 137 Pa. St. 548. 6. Kemedy at Law Plea. In an equity action the objection that the plaintiff has an adequate remedy at law, if not apparent on the face of the complaint, should be set up in the an- swer or it is waived. Thomas v. Grand View Beach R. Co., 76 Hun (N. Y.) 601; Mentz v. Cook, 108 N". Y. 509; Ostrander v. Weber, 114 N. Y., 95- But "that no court of equity has jurisdiction" may, it seems, be raised on the trial. Le Bussiere v. Halladay, 4 Abb. N. Cas. (N. Y.) in. Demurrer Remedy at Law. Where it appears from the face of a complaint that no ground for equitable relief is stated, the objection that a court of equity would have no jurisdiction need not be taken by answer. Nutting v, Atwood (Super Ct.), 53 N. Y. St. Rep. 152; 23 N. Y. Supp. 816; Gullickson v. Madsen (Wis., 1894), 57 N. W. Rep. 965- 7. Withdrawal of Answer. After the defendant has answered and there has been a replication thereto the de- fendant cannot file a plea in abatement on the ground of the disability of plaintiff unless he is given leave to withdraw his answer. Bush v. Linthi- cum, 59 Md. 344. ABBREVIATIONS. By S. R. PERRY. I. IN GENERAL, 42. II. WITHIN JUDICIAL KNOWLEDGE. 43- 1. Officials, 43. 2. Proper Names, 43. a. Initials, 43. b. Contractions^ 46. c. Prefixes and Suffixes, 46. 3. Time, 47. 4. Amount and Description, 47. III. MISCELLANEOUS, 48. I. IN GENERAL. The best practice requires words in legal instruments to be written out at length, but an abbreviation does not constitute legal error where its use for the full term has been so constant that its meaning is unvarying and a matter of general knowledge. 1 Courts will Take Notice of such abbreviations as within judicial cog- nizance. The legality of an abbreviation as within the scope of judicial notice must be carefully distinguished from the admis- sibility of an abbreviation as evidence sufficient to justify a find- ing of its true meaning as a fact by the court or jury. An abbre- viation may be evidence of its own meaning, or where coupled with averments in a pleading may be explained by parol evi- dence. 3 1. New York. New York Code Rogers, 3 Mo. 227 ; Fenton v. Perkins, Civ. Pro. sec. 22 ; Jackson -v. Gumaer, 2 3 Mo. 144. Cow. (N. Y.) 552 ; Dana v. Fiedler, 12 New Hampshire. Smith v. Butler, N. Y. 40 ; 62 Am. Dec. 130 ; Patterson 25 N. H. 521 ; Berry v. Osborn, 28 N. v. People, 12 Hun (N. Y.) 139. H. 279. Illinois. Lee v. Mendel, 40 111. 359 ; New Jersey. Scudder v. Coryell, 10 Rowley v. Berrian, 12 111. 198 ; Shat- N. J. L. 344. tuck v. People, 5 111. 481 ; Livingston, Texas. Brown v. State, 16 Tex. v. Ketelle, 6 111. 116; 41 Am. Dec. 166 ; App. 245. Holbrook v. Nichol, 36 111. 161. Ohio. Rice v. Buchanan (Ohio, 1844), Indiana. Kearns v. State, 3 Blackf. I W. J. L. 395. (Ind.) 336 ; Buell v. State, 72 Ind. 523 ; Arkansas. Elliott v. State Bank, 4 Miller v. Wild Cat Gravel Road Co., Ark. 437. 52 Ind. 51 ; U. S. Express Co. v. United States. Gordon v. Holliday, Keefer, 59 Ind. 263 ; Steinmetz v. i Wash. (U. S.) 285. Versailles, etc., Turnpike Co., 57 Ind. And see other cases cited through- 460 ; Hedderich v. State, 101 Ind. 564 ; out this article. 51 Am. Rep. 768. 2. New Y.ork. Silberman v. Clark, Missouri. South Missouri Land Co. 96 N. Y. 522 ; Lewis v. Few, 5 Johns. v. Jeffries, 40 Mo. App. 361 ; Birch v. (N. Y.) I ; Storey v. Salomon, 6 Daly 42 Within Judicial ABBREVIA TIONS. Knowledge. II. WITHIN JUDICIAL KNOWLEDGE 1. Officials. Courts have ju- dicial knowledge of abbreviations customarily used to designate the official character of their functionaries and other public officials. 1 2. Proper Names a. INITIALS. It is a presumption of law that every individual has a full Christian name, and exact practice requires that in all legal instruments a person should be desig- nated by his Christian name and not by initials. Accordingly the general rule of common law is that the statement of the Christian name by initials is ground for plea in abatement* or motion to quash the indictment. 3 Distinction between Vowels and Consonants. In course of time this rule was modified to the extent of allowing judicial notice to be taken of an initial if a vowel, but not if a consonant. 4 The modem (N. Y.) 531 ; Dana v. Fiedler, i E. D. Smith (N. Y.) 463 ; Collenden v. Dins- more, 55 N. Y. 200; 14 Am. Rep. 224; Taylor v. Beavers, 4 E. D. Smith (N. Y.)2I 5 . Indiana. Muirhead v. Snyder, 4 Ind. 486 ; Lasselle v. Hewson, 5 Blackf. (Ind.) 161 ; Louden v. Wai- pole, i Ind. 319 ; Jaqua v . Witham, etc., Co., 106 Ind. 545 ; Frazer v. State, 106 Ind. 471 ; Barton v. Ander- son, 104 Ind. 578 ; Jordan Ditching, etc., Assoc. v. Wagoner, 33 Ind. 50 ; Burroughs v. Wilson, 59 Ind. 536 ; Locke v. Merchants' Nat. Bank, 66 Ind. 353. Illinois. Keith v. Sturges, 51 111. 142 ; American Express Co. v. Lesem, 39 HI- 333- Missouri. McNichol v. Pacific Ex- press Co., 12 Mo. App. 401. Connecticut. Comstock v. Savage, 27 Conn. 184. Georgia. Wilson v. Coleman, 81 Ga. 297. Rhode Island. Kinney v. Flynn, 2 R. I. 319. Compare Ellis v. Park, 8 Tex. 205 ; Russell v. Martin, 15 Tex. 238. 1. In State v. Kinney, 81 Mo. 101, it was held that since a court is bound to take judicial notice of its own officers it will notice their signatures whether their official designation is added or not. "J. P." Equivalent to Justice of the Peace. Shattuck v. People, 5 111. 481; Scudder v. Coryell, 10 N. J. L. 344; Hawkins v. State (Ind., 1894), 36 N. E. Rep. 419. See also Com. v. Melling, 14 Gray (Mass.) 388; Livingston v. Kettelle, 6 111. 116 ; 41 Am. Dec. 166. "N. P." for Uotary Public. Row- ley v. Berrian, 12 111. 200, where the court says: "The letters ' N. P.' as clearly indicate the office of notary public as do'J. P.' that of justice of the peace; and this court has re- peatedly decided that such is the meaning of the latter initials." " C. C. C." for Clerk of Circuit Court. A jurat signed by a clerk of a circuit court as " C. C. C." is not invalid. Buell v. State, 72 Ind. 523. "Com'sr., etc." Held, these words are sufficiently descriptive of an officer qualified to take affidavits. Jackson v. Gumaer, 2 Cow. (N. Y.) 552. " Adm'r " for Administrator. Mose- ley v. Mastin, 37 Ala. 316. " Sup't" for Superintendent. South Missouri Land Co. v. Jeffries, 40 Mo. App. 361. 2. Rust v. Kennedy, 4 M. & W. 586 ; 7 Dowl. Pr. Cas. 199; 3 Jur. 198; Myers v. Sealy, 5 Rich. (S. Car.) 473; Frank v. Levie, 5 Robt.(N. Y.) 599; Gerrish v. State, 53 Ala. 476; Melvin v. Clark, 45 Ala. 285; Cantley v. Moody, 7 Port. (Ala.) 443; Fisher v. Northrup, 79 Mich. 287; Willis v. People, 2 111. 399; Zellers v. State, 7 Ind. 659 ; Gardner v. State, 4 Ind. 632; Smith v. State, 8 Ohio 294. In Miller v. Hay, 12 Jur. 985 ; 18 L. J. Exch. 487, it is stated that de- scribing a defendant in a declaration by surname and the initial letter only of his Christian name is not amendable under 3 and 4 Will. IV, c. 42, n, but is an insufficient designation, of which advantage must have been taken by special demurrer. 3. Gardner v. State, 4 Ind. 632; State v. Kutter, 59 Ind. 572. 4. Kinnersley v. Knott, 7 C. B. 43 Within Judicial ABBREVIA TIONS. Knowledge. tendency of courts, however, has been to hold an initial, whether vowel or consonant, to be a proper, or at least an allowable, de- signation of a party to an action, since it answers all purposes of description and identification, and the rule now seems to be settled that an initial is equivalent to the full Christian name. 1 state. The full Christian name is now seldom written anywhere. Search the records of our courts, our statutes, the lists of members of the legislature, election returns, written contracts, and other written instruments, news- papers, etc., and everywhere it will be found that as a rule the initials only of the Christian name are used." Fer- guson -v. Smith, 10 Kan. 396. In Perkins v. McDowell, 3 Wyoming 328, the plaintiff sued as " J. M. Mc- Dowell," and, on demurrer, the court, per Van Devanter, C.J., said : " While it does not occur frequently, there are many instances where single letters constitute the only Christian name. We cannot, then, judicially know that the letters " J.M. " are not the Chris- tian name of the plaintiff; it follows that there is no defect apparent on the face of the petition in this respect." " I know no law, nor do I see any reason, why a man may not take the letters A W for his first name, or, as it is generally called, his Christian name; for, as there is no union here between church and state and no obligation on parents to baptize their children, this may be as often changed as the patro- nymic." Colcock, J., in City Council v. King, 4 McCord (S. Car.) 487. Judgment cannot be Collaterally At- tacked. When a party has signed his Christian name, when its use is re- quired in business, by initials only, such initials constitute his business Christian name, and a judgment against him designating his given name by initials cannot be collaterally attacked. Oakley v. Pegler, 30 Neb. 628. Writ. A defendant was described in a writ as " W. W. Kilpin." He en- tered an appearance as Williams Wells Kilpin. In the title of an affidavit he was described as William Wells Kilpin. Held, well entitled. Lomax v. Kilpin, 6 M. &. W. 94; 16 J. L. Exch. 23. Indictment. When the name of a person as the owner of property is in- troduced in an indictment, the des- ignation of his Christian name by initials has been held sufficient. State v. Black, 31 Tex. 560. 980; 62 E. C. L. 978; 13 Jur. 658; Nash v. Calder, 5 Dowl. & L. 341. In Lomax v. Landells, 6 C. B. 577; 60 E. C. L. 577; 6 Dowl. & L. 396, the court said: "A vowel which is in it- self a word and may be pronounced separately may be a name; though a consonant, which is incapable of be- ing pronounced without the addition of a vowel, cannot." 1. Wiggins v. State, 80 Ga. 468 ; State v. Johnson, 93 Mo. 317 ; State v. Wall, 39 Mo. 532 ; Fenton v. Perkins, 3 Mo. 144 ; Birch v. Rogers, 3 Mo. 227 ; Brown v. Piper, 91 U. S. 37 (dictum that the court will notice customary abbreviations of Christian names); U. S. v. Winter, 13 Blatchf. (U. S.) 276 ; Wassels v. State, 26 Ind. 30 ; Anderson v. State, 26 Ind. 89; Lee v. Mendel, 40 111. 359 ; Vandermark v. People, 47 111. 122 ; Pickering v. Pulsifer, 9 111. 79 ; Ross v. Clawson, 47 111. 402 ; Greathouse v. Kipp, 4 111. 371 ; State v. Webster, 30 Ark. 166 ; State v. Seely, 30 Ark. 162 ; Thompson v. State, 48 Ala. 165 ; Stat v. Brite, 73 N. Car. 26 ; State v. Anderson, 3 Rich. (S. Car.) 172; Easterling v. State, 35 Miss. 210 ; Com. v. Certain Intox- icating Liquors, 142 Mass. 470. In Tweedy v. Jarvis, 27 Conn. 45, Storrs, C.J., said : "We see no sensi- ble or rational ground for any distinc^ tion between a vowel and a consonant, and think that either of them may be a name ; and that name is denoted by the sound by which it is called or pro- nounced when it is spoken audibly as a letter." And in Reg. v. Dale, 15 Jur. 657; 5 Eng. L. & Eq. 360, Lord Camp- bell remarked that he had been reliably informed that an individual had been baptized by the name of " T." Upon an appeal from an order grant- ing a motion to dissolve an attach- ment because the initials only and not the Christian names of the parties were given, the court said: "The papers do not give the full Christian names of all the parties, but give the initial letters thereof only. This we think is sufficient. The reason upon which a different rule was once found- ed in England 'has never existed in this 44 Within Judicial ABB RE VIA TIONS. Knowledge.. A Middle initial is no part of a man's name, and it is therefore immaterial that it is entirely disregarded 1 v. Johnson, 93 Mo. 317; States. Mc- Millan, 68 N. Car. 440; Com. v. Mell- ing, 14 Gray (Mass.) 388. Identification. Papers filed in a cause subsequent to pleading need only refer to a party or person with sufficient accuracy to identify him. Gordon v. State, 59 Ind. 75 ; Starks v. Stafford, 14 Oregon 317 ; Elting v. Gould, 96 Mo. 535. Amendment. Where only an initial is used the court may allow an amend- ment. Beggs v. Wellman, 82 Ala. 391. Publication of Summons. An order of publication which gave the party's name as " Q. Noland" instead of Quinces R. Noland conferred no juris- diction. Skelton v. Sackett, 91 Mo. 377- Indiana. A judgment rendered against a person designated by the initials of his Christian name was held irregular but not void. Bridges v. Layman, 31 Ind. 384. New Jersey. Initials are insufficient in pleading except where parties are described by initials in bills of ex- change, etc., under N. J. R. S. p. 852; 28. State v. Richards, 42 N. J. L. 69. Compare State v. Leon, 42 N. J. L. 540. Ohio. The insertion of initial letter only in a writ is a fatal defect. Herf v. Shulze, 10 Ohio 263. South Carolina. It was held where a Christian name was given by initials there was no name at all. Norris v. Graves, 4 Strobh. (S. Car.) 32. 1. New Jersey. Dilts v. Kinney, 15 N. J. L. 130. New York. Franklin v. Talmadge, 5 Johns. (N. Y.) 84; Comes v. Wilkin, 79 N. Y. 129; Roosevelt v. Gardinier, 2 Cow. (N. Y.) 463; People v. Cook, 14 Barb. (N. Y.) 259, 307. Pennsylvania. Bratton v. Seymour, 4 Watts (Pa.) 329; Paul v. Johnson, 9 Phila. (Pa.) 32. Illinois. Tucker v. People, 122 111. 583; Bletch v. Johnson, 40 111. 116; Erskine v. Davis, 25 111. 228; Hum- phrey v. Phillips, 57 111. 132. Indiana. Miller v. State, 69 Ind. 284; Choen v. State, 52 Ind. 347; 21 Am. Rep. 179; West v. State, 48 Ind. 483; O'Connor v. State, 97 Ind. 104. Ohio. Wagner v. Zeigler, 44 Ohio St. 59- New Hampshire. Hart v. Lindsey,, But see Diggs v. State, 49 Ala. 311, where it is said an indictment against a defendant by the initial of his Chris- tian name, or by his middle name only, or by the initial of his first and his middle name, \s prima facie subject to a plea in abatement, Bond. An obligor on a bond maybe sued in the name which he subscribed thereto, whether full or not. Com. v. Hughes, 10 B. Mon. (Ky.) 160. Affidavit. Where action was brought against defendant by initial of Chris- tian name " W " and proceeded to execution so entitling him, an affidavit in support of an application against the sheriff for not returning a _ft. fa. cannot be read if it describes the de- fendant by Christian name of "Wil- liam." Reg. v. Surrey, 8 Dowl. Pr. Cas. 510; 4 Jur. 559. Objection Waived by Judgment. Where defendants to a bill of fore- closure allowed judgment to be given pro confesso, they were held to admit that the petitioner, who described him- self by full Christian name, was the same individual as the mortgagee described only by initials. Ramsdell v. Eaton, 12 Mich. 117. In Breedlove v. Nicolet, 7 Pet. (U. S.) 413, where the plaintiff's name as given in a pleading was " J. J. Sigg," and objection thereto was raised for the first time on a writ of error, Marshall, C. J. , said :" He may have assumed the letters 'J. J.' as dis- tinguishing him from other persons of the surname of Sigg. Objections to the name of the plaintiff cannot be taken advantage of after judgment." Where the plaintiff sued as " O. B. Abbott," and obtained judgment, it was held that it would not be presumed, for the purpose of invalidating the judgment, that he had any other Christian name. Fewlass v. Abbott, 28 Mich. 270. Cured by Answer. Where the answer designates the plaintiff by full name and the complaint sets out only the initials, ^/a'.that the complaint, though defective, is cured by answer. Sherrod v. Shirley, 57 Ind. 13. Cured by Verdict. An indictment or other pleading defective from the ab- breviation of a name is cured by a verdict. Smith v. State, 8 Ohio 294 ; State v. Webster, 30 Ark. 166 ; State 45 Within Judicial ABB RE VIA TIONS. Knowledge. or erroneously stated. b. CONTRACTIONS. Courts will take judicial notice of the cus- tomary abbreviations or contractions of Christian names. 8 c. PREFIXES AND SUFFIXES. The commonly abbreviated pre- fixes and suffixes are not considered either as names in themselves or as parts of names. 3 17 N. H. 235; 43 Am. Dec. 597; Wood v. Fletcher, 3 N. H. 61. Vermont. Walbridge v. Kibbee, 20 Vt. 543; Isaac v. Wiley, 12 Vt. 674 ; Allen v. Taylor, 26 Vt. 599. Alabama. Edmundson v. State, 17 Ala. 179. Texas. State z/. Manning, 14 Tex. 402 ; McKay v. Speak, 8 Tex. 376. United States. Keene v. Meade, 3 Pet. (U. S.) i. England. Rex. v. Newman, I Ld. Raym. 562. Contra. Com. v. Perkins, I Pick. (Mass.) 388; Com. v. Hall, 3 Pick. (Mass.) 262; Com. v. Shearman, n Cush. (Mass.) 546; Com. v. McAvoy, 16 Gray (Mass.) 235; Terry v. Sisson, 125 Mass. 560. See Rex v. Craven, Russ. & R. C. C. 14; Rex v. Deeley, i Moo. C. C. 303; Rex v. Owen, i Moo. C. C. 118. 1. Johnson v. Day, 2 N. Dak. 295; State v. Black, 12 Mo. App. 531 ; Girons v. State, 29 Ind. 93; Morgan v. Woods, 33 Ind. 23; Schofield v. Jennings, 68 Ind. 232; Miller v. People, 39 111. 457; Langdon v. People, 133 111. 395; Rooks v. State, 83 Ala. 79; Hicks v. Riley, 83 Ga. 332; Delphino v. State, n Tex. App. 30; People -v. Lockwood, 6 Cal. 205; Milk z/. Christie, i Hill (N. Y.) IO2. Contra. Price v. State, 19 Ohio, 423; State -u. Hughes, i Swan (Tenn.) 261; Com. it. Buckley, 145 Mass. 181; Parker v. Parker, 146 Mass. 320. 2. "Th." for Thomas. Ogden v. Gibbons, 5 N. J. L. 531; Studstill v. State, 7 Ga. 2. " Jas." for James. Stephen -v. State, II Ga. 241. "Christy" for Christopher. Weaver v. McElhenon, 13 Mo. 89. "Ben." for Benjamin. Burnton v. State, 75 Ind. 477. "Isc."for Isaac. An attestation of the execution of a bill of sale purported to be by " Isc. Simpson, clerk to F. L. L." The affidavit filed with it, commenc- ing " I, Isaac Simpson, clerk to F. L. L.," etc., was signed " Isc. Simpson." Held, that by reasonable inference the attesting witness of the bill of sale and the deponent were the same person. Routh -v. Boutell, i El. & El. 850; 5 Jur. N. S. 785; 14 L. T. N. S. 286; 35 L. J. C. P. 274; 14 N. W. 609. "Jos." for Joseph. Com. v. O'Bald- win, 103 Mass. 210. But see U. S. v. Keen, i McLean (U. S.) 441, where a draft signed "Jos. Johnson" was held inadmissible under a count stat- ing it to be signed by Joseph Johnson. In this case the court said that judi- cial notice could not be taken of the fact that "Jos." meant Joseph, since it might equally as well mean Jo- sephus, Joshua, or some other Chris- tian name. "Geo." for George. Patterson v. People, 12 Hun (N. Y.) 139. In Wil- son v. Shannon, 6 Ark. 196, however, a plea that the defendant's name was " George " and not " Geo." as stated in the declaration, was held a good de- fence. " Bart." for Bartholomew Variance. In Rives v. Marrs, 25 111. 277, the de- cision was contrary to the general rule. The court said: "We cannot judi- cially know that ' Bart.' is a contrac- tion for Bartholomew. We are unable to know that it is not a full name or the contraction of some other. If the name is correctly given in the declara- tion, there should have been an aver- ment that the bill was made payable to him by the name adopted, which would have entitled the party to prove that it was a contraction of and used for the full name." To same effect see Curtis v. Marrs, 29 111. 508. 3. "Mrs." and " Mr." Thus a sum- mons against " Mrs. Smith " has been held erroneous. Schmidt v. Thomas, 33 111. App. 109, where the court said : " It seems superfluous to cite authority that the abbreviation ' Mrs.' is not a name, yet it has been so decided." State v. Richards, 42 N. J. L. 69 ; State v. Gibbs, 44 N. J. L. 169. It is ground of special demurrer that the Christian names of persons are omitted and "Mr." substituted if such omission or substitution occurs, 46 Within Judicial ABBREVIA TIONS. Knowledge. Surnames with Prefix. Where surnames, however, having a prefix are ordinarily written with an abbreviation, it is sufficient to write them in the same manner in pleading. 1 3. Time. Abbreviations for words denoting periods of time such as month, forenoon, afternoon, etc., will be judicially noticed. 2 4. Amount and Description. Where such customary letters, sym- bols, or figures are used for amounts or in matters of description as clearly convey their meaning they are legal. 3 not in describing a written instrument, but in stating a transaction between the parties, on which the action turns. Held, therefore, that a plea setting forth the terms of an illegal game was specially demurrable, because the treasurer and secretary were named only as "Mr. Richards" and "Mr. Selway." Gatty v. Field, 9 Ad. & El. 431 ; 58 E. C. L. 428. See also Tomlin v. Preston, I Chit. Rep. 397 ; 18 E. C. L. 114; Tomlin v. Snow, I Chit. Rep. 398. "Jr." and "Sr." The abbreviations "Jr." and "Sr." are no part of a name proper, and the omission of them does not constitute error. California. San Francisco v. Ran- dall, 54 Cal. 408. Vermont. Jameson v. Isaacs, 12 Vt. 611 ; Brainard v. Stilphin, 6 Vt. 9 ; 27 Am. Rep. 532 ; Prentiss v. Blake, 34 Vt. 460; Blake v. Tucker, 12 Vt. 39; Keith v. Ware, 6 Vt. 680. Massachusetts. Kincaid v. Howe, IO Mass. 203 ; Cobb v. Lucas, 15 Pick. (Mass.) 7. Illinois. Headley v. Shaw, 39 111. 354- New Jersey. State v. Atkinson, 27 N. J. L. 420. New York. People v. Cook, 14 Barb. (N. Y.) 259; Padgett v. Law- rence, 10 Paige (N. Y.) 170 ; 40 Am. Dec. 232 ; People v. Collins, 7 Johns. (N. Y.) 549 ; Jackson v. Prevost, 2 Cai. (N. Y.) 164 ; Fleet v. Youngs, ii Wend. (N. Y.) 522. Indiana. Geraghty v. State, no Ind. 103 ; Ross v. State, 116 Ind. 495. Ohio. Wagner v. Zeigler, 44 Ohio St. 59- Connecticut. Coit v. Starkweather, 8 Conn. 293. Maine. State v. Grant, 22 Me. 171. Kentucky. Johnson v. Ellison, 4 T. B. Mon. (Ky.) 526 ; 16 Am. Dec. 163. New Hampshire. State v. Weare, 38 N. H. 314. Wisconsin. Clark v. Gilbert, i Pin- ney (Wis.) 354. Missouri. Neil v. Dillon, 3 Mo. 59. England. Hogdon's Case, I Lewin C. C. 236 ; Rex v. Bailey, 7 C. & P. 264; 32 E. C. L. 505 ; Lepoit v. Browne, i Salk. 7. But see State v. Vittum, 9 N. H. 519 ; Boyden v. Hastings, 17 Pick. (Mass.) 200. 1. State v. Kean, 10 N. H. 347 ; 34 Am. Dec. 162. See also Moynahan v. People, 3 Colo. 367, citing above case ; Campbell v. Wolf, 33 Mo. 459 ; Fen- ton v. Perkins, 3 Mo. 144. 2. "Octb." for October. Kearns v. State, 3 Blackf. (Ind.) 336. " Feby." for February. Cutting v. Conklin, 28 111. 506. " A.M." and "P.M. " for Forenoon and Afternoon. Hedderich v. State, 101 Ind. 564; 51 Am. Rep. 768. "A.D."for Anno Domini. Browns/. State, 16 Tex. App. 245 ; State v. Hodgeden, 5 Vt. 481 ; Com. v. Clark, 4 Cush. (Mass.) 596. " Ms." for Months. Dana v. Fiedler, 12 N. Y. 40 ; 62 Am. Dec. 130. 3. As "$" for dollar ,"C.," "Ct. ( " "Cts." for cents, " M." for mills, "VI." for valuation, "Tx." for tax, " Lt." for lot, " Bk." for block, " Pt." for part. Jackson v. Cummings, 15 111. 449 ; Atkin v. Hinman, 7 111. 437. A statement of damages in a declara- tion "at one thou. dollars" was held valid. Rice v. Buchanan (Ohio, 1844), i W. L. J. 395- Where the dollar mark was omitted and a perpendicular line used to sep- arate dollars and cents, held, the mean- ing was sufficiently clear. Gutzwiller v. Crowe, 32 Minn. 70; Smiths. Head- ley, 33 Minn. 384. But where the dollar mark has been omitted and there is no mark, dot, or line to separate dollars and cents, and to show what is meant, it has been held void. Tidd v. Rines, 26 Minn. 47 Miscellaneous. A BBRE VIA TIONS. Miscellaneous. III. MISCELLANEOUS. Other words, letters, and symbols which have obtained an invariable and universal meaning by continual use may be used for their full written equivalent. 1 201; Lawrence v. Fast, 20 111. 339; 61 Am. Dec. 274; Lane v. Bommelmann, 21 111. 143; Avery v. Babcock, 35 111. 175- A fee bill comprised of several items was footed up and the result expressed thus " 15.10: total." Held, that the bill lacked the requisite cer- tainty. Peter v. Hill, 13 111. App. 36. Vermont. The mark commonly used to denote dollars ($) is not part of the English language, within the statute of this state, which requires declara- tions and other pleadings to be drawn in the English language; and a declara- tion in assumpsit upon a promissory note in which the amount for which the note was given was only expressed in figures with the mark for dollars prefixed (thus, $226.15) was held in- sufficient on demurrer. Clark v. Stoughton, 18 Vt. 50; 44 Am. Dec. 361. Tax Judgments. A description of land by abbreviations is sufficient if the meaning is plain. As, "Matthias Wagoner, S. E. 1/4 of N. W. 1/4 Sec. 18 T. 21, N. R. 7 E., 40 acres." This was held a sufficient description. Jordan Ditching, etc., Assoc. v. Wagoner, 33 Ind. 50. To same effect see Frazer v. State, 106 Ind. 471 (S. E. 1/4 N. W. 1/4 Sec. 16, etc.), appd. in Wasson z>. First Nat. Bank, 107 Ind. 206; Sibley v. Smith, 2 Mich. 486. Compare Detroit Young Men's Soc. v. Detroit, 3 Mich. 172; Smith v. Headley, 33 Minn. 384. But a description of the land against which the judgment purports to be rendered, as " S. 2 N. E. 4 S. E. 4 " of a designated section, township, and range, is fatally defective, and the judgment is upon its face of no effect. Keith v. Hayden, 26 Minn. 212. Deed. The description of land in a deed as " No. 8 Rg. N. W. P. Elliotts- ville"was held not sufficient to pass title to any particular parcel. Moulton v. Egery, 75 Me. 485. To like effect, Roberts v. Deeds, 57 Iowa 320. Indictment Description of Land. An indictment charging a conspiracy to procure the allowance of a false and fraudulent claim against the United States for compensation for a survey of land claimed to have been made by defendant, describing the land as " Tp. i S. i W.; Tp. i S. R. i6W. S. B. M.," and not otherwise locating the lands, held, defective. The court, per Field, J., said: " An indictment is to be read to the accused unless the reading is waived. The language should there- fore be so plain that one of ordinary intelligence can understand its mean- ing. For that purpose common words are to be used as descriptive of the matter. Abbreviations of words em- ployed by men of science or in the arts will not answer without full explana- tion of their meaning in ordinary language. The use of the initials ' A. D.' to indicate the year of our Lord is an exception because of its universality. Arabic figures and roman letters have also become indica- tive of numbers as fully as words written out could be. They are of such general use as to be known by all men. They therefore may be em- ployed in indictments. But the initials here have reference to the public lands as marked in the public surveys. They are signs used in a particular department of public business and are not matters of general and universal knowledge by all speakers of the English language." U. S. v. Reichert, 32 Fed. Rep. 142. 1. "Vs." for Against. Thus "vs." is a legal term for against. Nor are "vs." and like abbreviations sub- ject to objection as being Latin, where statutes forbid the use of language other than English, they having be- come anglicized by use. Smith v. But- ler, 25 N. H. 521. " &c." for and so forth. Berry v. Osborn, 28 N. H. 279; Bryan v. Bates, 15 111. 87, where a plea which read "as to the assault, etc.," was held to imply " battery." "&" for and. Brown v. State, 16 Tex. App. 245; Com. v. Clark, 4 Cush. (Mass.) 596. " L. S." for Seal. Smith v. Butler, 25 N. H. 521 ; Holbrook v. Nichol, 36 111. 161. "Ads." for Ad Sectam. Bowen v. Wilcox, 76 111. ii "Co.," "Com." for Company. Keith v. Sturges. 51 111. 142. " U. States" for United States. The declaration in an action for libel con- 48 Miscellaneous. ABBREVIA TIONS. Miscellaneous. tained the words " U. States," but in the paper produced in evidence it was written United States. Held, immate- rial variance. The court, per Kent, Ch. J., said the jury might consider " U. States " as an abbreviation of " United States," especially if there was usage to warrant it. In a late proclamation of the President of the United States and in various public documents we find the words " U. States" used for United States. Lewis v. Few, 5 Johns. (N. Y.) i. " C. 0. D." for Collect on Delivery. "These letters are by no means caba- listic ; they have no occult or myste- rious meaning, as used in appellee's complaint. In the ordinary commerce of the country these letters have acquired such a fixed and determinate meaning that courts and juries, from their general information, will readily understand what is meant thereby when they are used as the appellees have used them in their complaint. If the complaint were defective, for the want of an averment of the mean- ing of those letters, the defect could only be reached by a motion to make more specific, and which would cer- tainly be cured by the verdict." Per Howk.J., in U.S. Express Co. v. Keefer 59 Ind. 263. See State v. Intoxicating Liquors, 73 Me. 278. But in Collender v. Dinsmore, 55 N. Y. 205, Allen, J., said: "The letters "C. O. D." followed by an amount of money have come to be very well understood in the community and by the public, but perhaps could not without the aid of extrinsic evidence be read and interpreted by the courts; that is, their meaning may not be. con- sidered as judicially settled or so well understood that judicial notice can be taken of the purpose for which these letters are used." See also American Merchants' Union Express Co. v. Wolf, 79 111. 430 ; Mc- Nichol v. Pacific Express Co., 12 Mo. App. 401. In Illinois it is held that in order to introduce parol proof of the sense in which the letters " C. O. D." were used it was necessary to aver in plead- ing that they were used in the sense contended for. American Express Co. v. Lessem, 39 111. 312. Double Comma, " " The use of the double comma to indicate repetition is sanctioned not only by common usage but by standard literary authority. Miller v. Wild Cat Gravel Road Co., 52 Ind. 59. Attorney's Fee Bill. An attorney in rendering his bill may use such ab- breviations as are commonly used in the English language, under the stat- utes of 2 George II, c. 23, and 12 George II, c. 13, s. 5. A bill contain- ing the following abbreviations, " Drawg. declar. ffs. 15, Instrons. for case, attg. you in long confce, Pre- paring afft.," was held such as any- body would understand and therefore good. Frowd v. Stillard, 4 C. & P. 51; 19 E. C. L. 268. "0. F. B. A." Where a writ was endorsed "Dr. Peter Brudgeman, O. F. B. A. ," it was held clear from the re- mainder of the writ that " Odd Fellows Building Association" was meant. Odd Fellows Bldg. Assoc. v. Hogan, 28 Ark. 261. "C. B. & Q. R. E. Co." Courts will not take judicial notice that " C. B. & Q. R. R. Co." stands for Chicago, Burl- ington and Quincy Railroad Co. Ac- colo v. Chicago, etc., R. Co., 70 Iowa 185. Names of States. The Texas courts hold that the ordinary abbreviations of the names of states, as "Mo." for Missouri, "La." for Louisiana, etc., are not within judicial cognizance. Ellis v. Park, 8 Tex. 205 ; Russell v. Martin, 15 Tex. 238. Degree Mark. The use of the degree mark," , "is bad in Vermont. State v. Jericho, 40 Vt. 121 ; 94 Am. Dec. 387. i Encyc. PI. & Pr. 4. 49 ABDUCTION. I. INTRODUCTORY, 50. II. THE INDICTMENT, 50. III. INSTRUCTIONS, 52. As to the Abduction of Children, see KIDNAPPING. I. INTRODUCTORY. An abduction is the act of taking away or detaining a woman either against her own will or, in the case of a minor, against the will of her parent or other person having the lawful charge of her. 1 II. THE INDICTMENT The Form. At common law an indict- ment for abduction was exceedingly technical in form. The offence being a statutory 2 one, all the elements thereof as con- 1. Sweet's Law Diet. ; Anderson's Law Diet. ; Am. & Eng. Ency. Law, vol. I, tit. Abduction. This artiicle treats only of procedure in abduction proper ; the kindred subjects of kid- napping and seduction are treated of under their respective titles. 2. The crime of abduction was de- fined by statute of 3 Hen. VII, c. 2. The following was a good form of indictment under this statute : "That A. B., late of, etc., on, etc., at, etc., in and upon one M. W., spinster, then and yet being under the age of four- teen years, and a maid, and only daughter and heir of P. W., then lately deceased, she the said M. W. then and there having substance in movable goods to the value of one thousand pounds of lawful money of Great Britain, and in lands and tenements to the value of fifteen hundred pounds by the year, of like lawful money, did make an assault, and her the said M. then and there did put in great danger of her life, and her the said M., with force and arms, at the parish afore- said, in the county aforesaid, unlaw- fully, feloniously, and against the will of her the said M., violently did take, force, and convey away, with intention that he the said A. B., for lucre and the sake of her substance, feloniously should marry and have the said M. to wife ; and that the said A. B. after- wards, to wit, on, etc., by the assent, procurement, and abetment of the said A. M., J. J., and C., the wife of F. C., late of, etc., gentleman, and W. C., late of the same parish and county, clerk, with force and arms, at, etc., feloniously and for lucre of the said substance of the said M. W., did marry, and had the said M. W. to wife ; against the form of the statute, etc., and against the peace, etc. And the jurors, etc., do further present that the said A. M., J. J., C., the wife of F. C., and W. C., on the said four- teenth day of November, in the year aforesaid, at, etc., in the county of aforesaid, with force and arms, knowingly and feloniously were as- sisting, aiding, procuring, assenting, abetting, and maintaining the afore- said A. B. in doing and committing the felony aforesaid, against the form of the statute, etc., and against the peace, etc." Chitty's Criminal Law, vol. 3, 818. See other precedents : Cro. C. C. 475 ; Trem. P. C. 34 ; Pla. Cor. 174 ; West. 224 ; Ra. Ent. 487 ; Stark. 432. See the indictment on which Sweden and his assistants were convicted for carrying away Miss Raw- lins, 5 Harg. St. Tr. 465. The Indictment. 4D UCTION. The Indictment. tained in the statute were set out in the indictment. But under the liberal rules of criminal practice which now obtain in the various states an information or indictment is sufficient if it follows the language of the statute arid alleges all the acts and facts which the legislature has said shall constitute the offence, and is direct and certain as to the party to be charged, and the abduction itself. 1 Allegations Consent of Parent. The indictment need not allege that the taking was without the consent of the parent or guardian. 2 Custody. But it is proper to state from whose custody the female was taken. 3 Age of Female. It is not necessary to allege that defendant knew that the female was under the statutory age. 4 Charge of Malice. Nor need the indictment allege that the accused acted maliciously, wilfully, or feloniously. 5 Intention of Abduction. It is not necessary to state that the abduc- tion was done with the intention to marry or defile. 6 1. People v. Fowler, 88 Cal. 136. The following were held sufficient forms of indictment : "The grand jurors of the State of Missouri, summoned from the body of Rails County, empanelled, charged, and sworn, upon their oaths present that William H. Johnson, late of the county aforesaid, on the day of , 1887, at the county of Rails, State aforesaid, did then and there bring one Rosa Price, a female under the age of eighteen years, to wit, seven- teen years, unlawfully and feloniously take from one Lewis Price, her father, he the said Lewis Price then and there having the legal charge of the per- son of the said Rosa Price, without the consent and against the will of the said Lewis Price, for the purpose of concubinage, by having illicit sexual intercourse with him, the said William H. Johnson, against the peace and dignity of the state." State v. Johnson, 115 Mo. 486. The defendant, at a time and place mentioned, "did unlawfully, wilfully, and feloniously take one Nora M. Greenslitt into a certain building (par- ticularly described as a livery stable) for the purpose of sexual intercourse with him, the said Wesley Keith ; . . . she, the said Nora M. Greenslitt, being then and there an unmarried female, and under the age of sixteen years, to wit, of the age of ten years; contrary to the form of the statute," etc. State v. Keith, 47 Minn. 559. 2. State -v. Jamison, 38 Minn. 21. 3. State -v. Jamison, 38 Minn. 21. But where the indictment alleges that the defendant took a female under 18 years of age from the custody of her mother, it is not necessary to allege that the mother had the legal charge of the person of the girl. People v. Fowler, 88 Cal. 136. Nor need the order of commitment recite that the father, mother, or guardian had legal charge of the female's person. Ex p. Estrado, 88 Cal. 316. 4. People v. Fowler, 88 Cal. 136. 5. Higgins v. Com. (Ky. 1893), 21 S. W. Rep. 23. 6. Cro. Car. 489. It is safe to insert such allegation, however. i Hale 660. But some of the states in their "abduction" statutes make mention of carnal intercourse and concubinage. This gives rise probably to a different rule than the one stated in the text. See the following cases : "For the Purpose of Prostitution." An indictment charging the defendant with the abduction of a female " for the purpose of having illicit sexual intercourse with her" does not charge an abduction of a female " for the pur- pose of prostitution," within the mean- ing of the statute. 2 G. & H. 441, sec. 16 ; Osborn v. State, 52 Ind. 526. Rev. St. Ind. 1881, 1993, provides for the punishment of any person who " entices or takes away any female of previous chaste character from wher- ever she may be to a house ot ill fame or elsewhere for the purpose of pros- titution." Held, that, in an informa- Instructions. ABD UCTION. Instructions. At common law it was necessary to state that the taking was for lucre. 1 Place and Manner. The place and the manner of the taking must also be set forth. 2 Joinder of Counts. The indictment for abduction may contain sev- eral counts. 3 III. INSTRUCTIONS. Where the statute defines different kinds of abduction, the court may read and explain all the kinds to the jury, although the defendant is only charged with one. 4 tion under said section, an allegation that the enticing was done " with the felonious intent of rendering [the per- son enticed] a prostitute" was equiva- lent to alleging that it was done " for the purpose of prostitution." Nichols v. State, 127 Ind. 406. Insufficient Indictment. Under Gen. St. Ky. c. 29, art. 4, 9, rendering any one who shall " unlawfully take or de- tain any woman, against her will, with intent to have carnal knowledge of her, liable to punishment," it is not sufficient that an indictment charges the defendant with having carnal knowledge of a woman against her will, with intent to have such knowl- edge. Krambiel v. Com. (Ky. , 1887), 2 S. W. Rep. 555. Surplusage. An information, other- wise good, charging E. O. with the abduction of a female under the age of 18 years from her parents for the pur- pose of concubinage is not vitiated by the addition of the words " for the purpose of having sexual intercourse with him, the said E. O." State v. Overstreet, 43 Kan. 299. 1. Cro. Car. 484. But if the jury were not satisfied that the prisoner was actuated by motives of lucre, and they were satisfied that he used force to the person of the female, they might convict him of an assault under 7 Will. IV and i Viet. c. 85, s. n. Reg. v. Ear- ran, 9 C. & P. 387 ; 38 E. C. L. 167, per Parke, B. 2. Cro. Car. 484. Where the allega- tion was that the female was enticed from the city of Muncie to the city of Indianapolis, this was held defective in not stating the particular house or place in which she was enticed. Nich- ols v. State, 127 Ind. 406. But a de- fect in not stating the house from which the girl was enticed is cured by verdict. Nichols v. State, 127 Ind. 406. Contra. It is not necessary to state from what place the girl was taken. State v. Keith, 47 Minn. 559. The manner of detention need not be stated. Cargill v. Com. (Ky., 1890), 13 S. W. Rep. 916. 3. Mason v. State, 29 Tex. App. 24, where the joinder of counts for kid- napping and abduction was sustained; State v. Tidwell. 5 Strobh. (S. Car.) I, where counts under both the 3d & 4th sections of the stat. 4& 5 Phil. &. M., ch. 8, were joined. Somewhat analogous to the rule stated in the text is that which allows a declaration for enticing away a minor daughter from her father to contain a count for harboring and secreting her. Stowe v. Heywood, 7 Allen (Mass.) 118. Not Separate Offences. When an in- dictment charges an assault and bat- tery only as a part of or mode of exe- cuting a forcible arrest and abduction, it is not subject to the objection that it contains two separate and distinct offences. People z>. Ah Own, 39 Cal. 604. An indictment for abduction which charges taking "for the purpose of prostitution and sexual intercourse " does not charge two offences. People v. Powell, 4 N. Y. Crim. Rep. 585. 4. People v. Brandt (Supreme Ct.), 14 N. Y. St. Rep. 419. ABIDING THE EVENT. By F. A. CARD. I. DEFINITION, 53. II. STIPULATIONS AND AGREEMENTS, 54. in. STAYING PKOCEEDINGS, 56. IV. BONDS AND RECOGNIZANCES, 57- V. COSTS, 59. VI. FUNDS IN COUET, 61. I. DEFINITION. " Abiding the event," or " to abide the event," mean either awaiting the event or acting in accordance with the event, as by obeying or conforming to the order or decree of the court. 1 The terms are most used to indicate awaiting the event without action/-* but are frequently used to indicate action in 1. Anderson's Law Diet. p. 6; Jack- son v. State, 30 Kan. 88. Application of Term. In determining the application of the term the ques- tion is not the abstract meaning of the words, but their meaning as applied to the facts of the particular case. Hodges v. Pingree, 108 Mass. 585. Where the statute required a recog- nizance conditioned "that the defend- ant will appear before the proper court at the proper time and there remain to abide the judgment of the court of appeals," and a bond was given con- ditioned "that the defendant will ap- pear and await the action of the court of appeals and not depart until dis- charged by order of the court," a motion to dismiss the appeal because the bond was not in accordance with the statute was granted, the court holding that the bond given did not require appellant to abide the judg- ment of the court, but only to await the action of the court, and was not a substantial compliance with the stat- ute. Wilson v. State, 7 Tex. App. 38. 2. In Arbitration Bonds the words " abide the award " mean the same as to stand to the award, viz., to await the award without revocation. It does not mean that the parties will acqui- esce in and not dispute the validity of the award when made. Vynior's Case, 8 Coke 82; Chamley v. Winstanley, 5 East 266; Shaw v. Hatch, 6 N. H. 162; Marshall v. Reed, 48 N. H. 36. Where a bond was conditioned to pay stipulated damages in case de- fendant did not abide by and perform an award, held, an averment of an award in favor of plaintiff, and a refu- sal of defendant to pay the award on demand, showed a breach of the bond. Sleeper v. Pickering, 17 N. H. 461. Where a Bond in Ne Exeat was given conditioned " to abide and perform the judgment of the court," and the surety on the bond, having placed his princi- pal in the custody of the court, peti- tioned to be released from the bond, his attorney contending that the effect of the bond was to abide the event of the suit, the motion was denied, the court stating that it could not regard a bond to perform, etc., as equivalent to one to abide the event of the suit, and further holding that in ne exeat a surety had no right to surrender his principal. Griswold's Petition, 13 R. I. 126. Agreement to Perfect Reference. On a bond conditioned that defendant would in good faith abide by and fulfil his agreement in having and perfecting a reference, held, that evidence that de- 53 Stipulations ABIDING THE EVENT. and Agreements. conformance with the event, 1 the word " event " meaning re- sult. 2 II. STIPULATIONS AND AGREEMENTS. Power of Attorney. The term " abide the event " is frequently found in stipulations between at- torneys as to the conduct of actions. An attorney, as such, by virtue of his employment has power to bind his client by stipula- tion that but one of several actions shall be tried, and that the judgment in the action tried shall determine the judgment in the other actions. 3 fendant prevented one of the referees from wholly completing and perfecting the reference showed a breach of the bond. Quimby v. Melvin, 35 N. H. 198. 1. A Bond to Appear and Abide the Order of the Court means to perform, execute, and conform to such order as the court makes. It is not satisfied by appear- ance merely. Taylor v. Hughes, 3 Me. 433; Hodge v. Hodgdon, 8 Cush. (Mass.) 297; Jackson v. State, 30 Kan. 88. Where on appeal from a money judgment a bond was given " to abide and satisfy the judgment or order which the appellate court may give," it was held that it meant to execute, perform, and conform to the judgment or order and required the carrying it into complete effect. Erickson v. Elder, 34 Minn. 371. Abiding Equity Decision in Partition Suit. Where it was agreed that a par- tition at law should "abide the deci- sion " in an equity suit brought for the same purpose, held, the title having been determined in the equity suit, that partition at law should be ordered in accordance with the decision in the equity suit as to title. Hodges v. Pingree, 108 Mass. 585. 2. The event is the result of all pro- ceedings incident to the litigation. Field v. Great Northern R. Co., 39 L. T. 80, 3 Ex. Div. 261. When Each Party Succeeds in Part the word "event" is to be read distribu- tively, so that each will be entitled to his share of costs. Myers v. Defries, 42 L. T. 137. Order for New Trial. The " event " is the decision on the particular ground on which the new trial is granted; viz., if the new trial was decided on a different ground from that on which the motion therefor was granted, it would not be the event contemplated by the order for a new trial. Jones v. Williams, L. R. 8 Q. B. 280; Daw- son v. Harris, n C. B. N. S. 801, 103 E. C. L. 799. Witness Interested in Event. Where the question was whether a witness was competent, viz., as being inter- ested in the event of the action, held, that event meant result, and that the witness was incompetent if interested in the result of the action. Fitch v. Bates, ii Barb. (N. Y.)473. 3. Ohlquest v. Farvvell, 71 Iowa 231 ; Slaven v. Germain, 64 Hun (N. Y.) 506; Eidam v. Finnegan, 48 Minn. 53; Dilworth v. Curts, 139 111. 508; North Missouri R. Co. v. Stephens, 36 Mo. 150, 88 Am. Dec. 138. An attorney by virtue of his general employment is authorized to do all acts necessary to the prosecution or de- fence which pertain to the remedy. The choice of proceedings, manner of the trial, and the like, are within the sphere of his authority, and his client is bound by his acts. Hence he may consent to consolidate several actions for trial, or that the trial of one shall determine the others, for this pertains to the remedy, manner of trial, and is not an agreement for judgment or a compromise. Ohlquest v. Farwell, 71 Iowa 233. Power of Special Counsel. Where counsel was employed especially to argue a demurrer and was not the general counsel or attorney of the party, held, he had no power to stipu- late that a decision on the demurrer should be final, and thus bind the party for whom he appeared to abide by the result of such decision. Baron v. Cohen, 62 How. Pr. (N. Y.) 367. Partition Suits in Other States. - Where it was stipulated by and be- tween the parties by written agree- ment that all real estate owned by them in common should be partitioned in New York, although some of it was in other states, such agreement was enforced by enjoining the prosecution of partition suits in other states, it 54 Stipulations ABIDING THE EVENT. and Agreement Form of stipulations. Such stipulations are usually in the form that those not tried shall abide the event or decision of the one tried. Usually such stipulations should be in writing or entered in the court minutes to be binding, and this is the safer practice. 1 An Attorney for Infants has not power to bind them by such a stipulation without the consent and concurrence of the court. 2 Meaning of Words in Stipulations. When used in such stipulations the words mean that the parties shall acquiesce in and be bound by the judgment in the action tried. 3 being held equivalent to an agree- ment to abide by the decision of the courts of New York as to the parti- tion of said lands. Bowers v. Durant, 43 Hun (N. Y.) 348. Defence Common to Two Actions. Where it was stipulated that a defence common to two actions should abide an appeal in one of them, held, binding and enforced. Riggs v. Commercial Mut. Ins. Co., 125 N. Y. n. Where, in a number of actions by different plaintiffs against the same defendant, it was stipulated by the respective attorneys " that two of the actions, representing the two classes of cases involved, should be tried, and that a like judgment should be entered in all the cases of the same class as in the one tried without a trial, and that if an appeal was taken all cases of the same class should abide the determi- nation of the appeal, it being the inten- tion to determine all questions involved by the trial of the two suits specified," the defendant, being defeated and having appealed, subsequently moved to dismiss its own appeal on the ground of a mistake of fact in enter- ing into the stipulation. On appeal from an order granting such motion, held, it was erroneous and should be reversed; that the stipulation was such as the attorneys had power to make, was fair, mutual and binding, and would be enforced. McKinley v. Wilmington Star Min. Co., 7 111. App. 392- 1. Where such a stipulation was en- tered into in open court, but was not reduced to writing and filed with the clerk or entered in the minutes, held, void, and that it was not rendered valid by an order subsequently ob- tained by one of the parties without the consent of the other to enter it on the minutes nunc pro tune. Bork- heim v. North British, etc., Ins. Co., 38 Cal. 623. The Iowa Code provided that no evi- dence of an agreement of an attorney to bind his client should be received except the statement of the attorney or his written agreement filed or en- tered on the minutes. Held, the affi- davit of the opposing attorney could not be received as evidence of an agreement as to the submission of several actions. Searlesz/. Lux (Iowa, 1892), 52 N. W. Rep. 327. 2. Where some of the parties to an action were infants and their attorney entered into a stipulation that the ac- tion should abide the event of another action, held, that the power of an attorney for infants, or of a guardian ad litem for infants, did not extend so far as to authorize such stipulation; that it would not be enforced as to the infants unless it had been ratified and approved by the court on evi- dience clearly showing it was for the interest of the infants; that the ac- tions involved the same questions and the infants were represented by the same guardian ad litem. The judgment entered on such stipulation was reversed as to the infants and affirmed as to the adults. Eidam v. Finnegan, 48 Minn. 53. 3. Ohlquest v. Farwell, 71 Iowa 231; Eidam v. Finnegan, 48 Minn. 53; Slaven v. Germain, 64 Hun (N. Y.) 506; Holahan v. Sackett Harbor, etc., R. Co., 24 How. Pr. (N. Y.) 155. Stipulation in Different Forms. In one case the stipulation appeared in three forms, viz.: in clerk's min- utes it was, "On stipulation this case was ordered over the term to abide the result of the case of H. now pending in General Term;" in judge's minutes, " Stipulated that is- sues in this case except question of damage abide result of H. case now pending in General Term;" in stenog- rapher's minutes, " Stipulated that issues in this case except question of 55 Stipulations ABIDING THE EVENT. and Agreements. III. STAYING PROCEEDINGS IN ONE ACTION TO ABIDE THE EVENT OF ANOTHER. See ANOTHER SUIT PENDING. damages abide result of H. case now pending in General Term, and that if H. case is decided in favor of plaintiff all questions of fact and law in this case are thereby decided in favor of this plaintiff except the ques- tion of damages." The court held the meaning of these several en- tries was substantially the same; that the stipulation was binding, and no question could bi; tried except the question of damage, the H. case hav- ing been decided in favor of plaintiff by the General Term. Slaven v. Ger- main, 64 Hun (N. Y.) 506. Actions of Ejectment. Where in sev- eral actions of ejectment it was stipu- lated that all but one should be stayed and should abide the event of the one tried, and in case of judgment therein for defendant, the defendants in the others should deliver possession to plaintiff or purchase of him, held, plaintiff having been nonsuited in the action tried, that the stipulation was binding and estopped defendants or their grantees from claiming title to the property. Brown v. Sprague, 5 Den. (N. Y.) 552. Where Two Actions on Covenant were Consolidated for trial under stipulation that they should be tried on the issue of title and judgment might include recovery on other issues as title might appear, held, to narrow the whole question to that of title and make judgment dependent on that issue alone. Welsh v. Cooley, 44 Minn. 446. Decision of Appellate Court. Where, on motion for a stay pending decision of another action by appellate court, a stay was ordered on condition that defendant stipulate that the action abide the result of said appeal, and a stipulation was entered into to the effect that unless the appellate court held the bonds involved in the action valid, defendant's answers should be stricken out and plaintiff have judg- ment as demanded, and the appellate court decided the appeal without pass- ing on the question of the validity of the bonds, held, defendant was bound by the stipulation and it would be en- forced. McNeill -v. Andes, 40 Fed. Rep. 45. Repeal of Statute Fending Action. Where it was stipulated that one of several actions should be tried and the others abide the final judgment in the one tried, and a like judgment should be entered in each of the oth- ers, held, binding and enforced, al- though meanwhile the legislature had repealed the act on which the judg- ment rendered in the one tried was based. North Missouri R. Co. v. Stephens, 36 Mo. 150, 88 Am. Dec. 138. Stipulation to Abide by " Issue. "- Where it was stipulated between attor- neys "that a certain action should abide by the issue in a specified case," and in the specified case the plaintiff finally succeeded and his attorney then moved for judgment in the action covered by the stipulation upon the stipulation and the proceedings in the specified case, and the motion was granted and judgment for plaintiff entered, held, proper ; that to abide by the issue meant the ultimate result or end of the specified case, and that the only question left open by the stipulation was that of damages, as to which there was no error, and the judgment was affirmed. Niagara Ins. Co. v. Scammon, 35 111. App. 586. Amending of Pleadings not Changing Issue does not Affect Stipulation. Where it was stipulated between attorneys " that one of a number of actions should be tried as a test case and the others should abide the result of the test case," held, binding, although the judgment in the test case was once reversed and a new trial had on amended pleadings not substantially changing the issues. Judgment en- tered on such stipulation was affirmed. Galbreath v. Rogers, 45 Mo. App. 327. Where in two cases it was stipulated and entered in the minutes "that one should be tried and proceedings in the other stayed until final judgment in the one tried, and that on such final judgment a judgment should be en- tered in the other action correspond- ing to and like the judgment in the one tried," held, that on final judg- ment for plaintiff in the case tried he was entitled to enter a like judgment in the case not tried, and that the fact that in the case tried a judgment for plaintiff was reversed and a new trial had on amended pleadings not sub- stantially changing the issues did not affect the stipulation or render it nu- Bonds and ABIDING THE EVENT. Recognizances. IV. BONDS AND RECOGNIZANCES. Criminal Proceedings. The words "to abide the order, judgment, or decision of the court," or equivalent words, when used in bonds or recognizances given in a criminal or guasi-criminal proceeding, are usually held to re- quire an awaiting of the order or decision. 1 gatory, the new trial resulting in judg- ment for plaintiff as on the first trial. Gilmour v. American Cent. Ins. Co., 67 Cal. 368. "To Await" Held Equivalent to "to Abide." Where it was stipulated be- tween attorneys "that a number of untried cases should be submitted to the court upon the same evidence given in a specified case tried, and that the findings in the case tried should be the findings in those not tried, and that the untried cases should await but not abide the decision of the case tried," held, its effect was to make the decis- ion in the case tri'ed conclusive in the other cases, and the sole function of the court was to enter judgment in the untried cases on the findings in the case tried, and that exceptions not taken in the case tried could not be raised in the other cases. State v. Hannibal, etc., R. Co., 34 Mo. App. 597- Married Woman Bound by Attorney's Stipulation. Where in a number of cases in which one of the defendants was a married woman it was stipulated between attorneys "that one of the cases should be tried and that the oth- ers should abide the result of the one tried, and that the pleadings in the case tried should be considered as filed in the other cases," and the court consented to the stipulation and or- dered it filed, and an order thereon was entertained in each case ; and plaintiff having recovered judgment in the case tried, judgment for him was entered in the other cases on mo- tion and production of the stipulation and proceedings had in the case tried, held, on appeal from one of the judg- ments so entered, that the stipulation was binding and judgment properly entered thereon ; that the fact that one of the defendants was a married woman did not affect the stipulation that her attorney, as such, had power to and bound her by the stipulation. Galbreath v. Rogers, 30 Mo. App. 405. 1. State v. Holmes, 23 Iowa 458 ; People v. Clary, 17 Wend. (N. Y.)374- The obligation of the sureties is fulfilled when the accused appears and awaits the decision of the court or is put under the control of the court. State v. Holmes, 23 Iowa 458 ; Peo- ple v. Clary, 17 Wend. (N. Y.) 374 ; People v. McCully, i Edm. Sel. Cas. (N. Y.) 270 ; State v. Stout, n N. J. L. 124. In contempt proceedings the condi- tion of such a bond is broken by fail- ure of the accused to appear on the day named. Thomas v. Cameron, 17 Wend. (N. Y.) 59. Respite by Court. Where action was brought against the sureties in a crim- inal matter, the bond being condi- tioned that the accused would appear and abide the order of the court, and the defence was that the accused ap- peared on a certain day and the court, against the objection of the sureties, respited the recognizance to another day, held, a good defence and equiva- lent to a surrender ; that the purpose of the bond was to secure the appear- ance of the accused and put him under the power of the court, and this had been practically performed. People v. Clary, 17 Wend. (N. Y.) 374. Power of Justice. Where a justice had power to take a bond for theappear- ance of the accused, and one was taken conditioned that he would appear and abide the judgment of the court, held, equivalent to a bond to appear, and within the power of the justice, al- though counsel for the sureties con- tended that taking a bond to abide the judgment of the court was beyond the power of the justice and rendered the obligation void. Sturges v. Sherwood, 15 Conn. 149. Second Failure of Accused. Where a bond for the appearance of the accused was taken, and was for- feited on his failure to appear, and afterwards the accused was rearrested and said forfeiture cancelled and set aside, held, sureties not liable for a second failure of the accused to ap- pear, because when he was rearrested he was in the custody of the court, and thereby the sureties were relieved from liability ; that the purpose of the bond was to secure appearance of the accused, and the sureties would be 57 Bonds and ABIDING THE EVENT. Recognizances. Civil Actions. But in bonds and recognizances given in civil actions and proceedings, they are generally held to require com- pliance with, or performance of, the order or decision. 1 liable if he failed to appear or abide the judgment of the court. (The form of the bond was not stated.) State v. Holmes, 23 Iowa 460. Continuous Appearance. Where in a criminal case the condition of the recognizance was "to appear before the court and answer concerning the charge, and not to depart without leave of court." held, it bound not only to appear on the day named, but to continue to appear until the accused was acquitted or, if found guilty, un- til sentence was imposed. And where the accused appeared at the trial and was found guilty, but departed before sentence was pronounced on him, held, the sureties on the recognizance were liable. Dennard v. State, 2 Kelly (Ga.) 139. Held to Bind to Performance of the Judgment. Where the condition of the recognizance was "that the accused shall be and appear before the judge of the court to answer, and not depart without leave, and abide the order and judgment thereof," and the ac- cused appeared for trial, was con- victed, and fined ; moved for a new trial, which was denied ; then failed to appear and pay the fine, and the recognizance was declared forfeited, the sureties contended they were dis- charged by the appearance of the ac- cused and his submission to trial. Held, the sureties were liable ; that the condition bound the accused not only to appear, but to abide the judg- ment of the court, viz., to perform and satisfy it by payment of the fine imposed. State v. Whitson, 8 Blackf. (Ind.) 178. But where, in a contempt proceed- ing, the accused, although not in court when called, is subsequently arrested, brought into court, and adjudged guilty of contempt and imprisoned, the obligation of the sureties is per- formed, and they were held not liable to prosecution on the bond, and an ac- tion against them thereon was per- petually stayed. Barton v. Butts, 32' How. Pr. (N. Y.)456. An appeal bond to appear and abide the judgment of the court does not prevent the imposition of sentence, under the Alabama statutes. In re Newton, 94 Ala. 431. 1. Jackson v. State, 30 Kan. 88 ; Hodge v. Hodgdon, 8 Cush. (Mass.) 294 ; Taylor v. Hughes, 3 Me. 433 ; Fowler v. Thorn, 4 Ark. 208. In bastardy proceedings a bond to abide the order of the court requires performance of the order, and failure thereof renders the sureties liable. Jackson v. State, 30 Kan. 88. In arbitration bonds the words "to abide the award" or "stand to the award " have been held to mean simply to await the award without revoca- tion, not to perform it when made. Marshall v. Reed, 48 N. H. 35. But by the mere submission to ar- bitration it is held the law implies a promise to abide by and perform the award. Kyd on Awards, pp. n & 278, Ed. of 1808 ; Knox v. Symmonds, 3 Bro. C. C. 361 ; Valentine v. Valen- tine, 2 Barb. Ch. (N. Y.) 437. A promise to pay the amount found due is implied from an agreement to abide by the decision of the arbitra- tors. Efner v. Shaw, 2 Wend. (N. Y.) 567. In libels in admiralty a bond is re- quired conditioned to abide and an- swer the decree of the court. 9 U. S. Stat. at Large, p. 181, Act of Mch. 3, 1847, S i ; The Gran Para, 10 Wheat. (U.S.) 498. Such a bond requires performance of such a decree, as distinguished from merely awaiting the decree. The Pal- myra, 12 Wheat. (U. S.) 19; The Wanata, 95 U. S. 6n. A bond on appeal to pay money or otherwise abide the decision of the court requires performance of such judgment. Fowler v. Thorn, 4 Ark. 210. Miscellaneous. Under the provision of the code of California, on appeal from a judgment for the delivery of personal property, the appellant must give a bond to obey the order of the appellate court, as well as an ordinary bond, before he can obtain a stay. Swasey v. Adair, 88 Cal. 203. A bond to pay money according to the order of the court can be enforced only according to the true intent of the condition under which it was given and for the benefit of those for whom it was given. Elmendorf v. Lansing, 5 Cow. (N. Y.) 468. Costs. ABIDING THE EVENT. Costs. V. COSTS. The term " costs to abide the event " has long been used. 1 It is the general rule, in the absence of statute to the con- trary, that costs should abide the event of the suit or action and go to the prevailing party. 3 The event on which costs depend is usually the final disposition of the litigation. 3 Where a New Trial is granted costs are usually given to abide the event. 4 In such case the costs of appeal go to the party 1. By Statute 9 Ann. ch. 20 it was provided that in disputes in relation to municipal officers the relator should receive or pay costs according to the event of the suit. 3 Blackstone Com. p. 264. It was one of the usual terms of ar- bitration agreements or rules that costs should abide the event. 2 Chitty's General Practice p. 86. 2. McReynolds v. Gates, 7 Humph. (Tenn.) 29 ; Carroll v. Hardy, 21 Mo. 66 ; Turley v. Logan County, 17 111. 151 ; Clifton v. Sparks, 29 Mo. App. 560. See COSTS. 3. Green v. Wright, 46 L. J. C. P. 427 ; Field v. Great Northern R. Co., 47 L. J. Q. B. 662 ; Reeves v. McGre- gor, 9 Ad. & El. 577, 36 E. C. L. 201 ; Meule v. Goddard, 5 B. & Aid. 766; First Nat. Bank v. Fourth Nat. Bank, 84 N. Y. 469; 2 Chitty's General Prac- tice p. 86. Parties should not be compelled to pay costs while a suit is still pending, but they should abide the event of the suit. Carroll v. Hardy, 21 Mo. 66. Costs should only be awarded on the true merits as they appear at the final disposition of the case, and not at any intermediate stage. Turley v. Logan County, 17 111. 151. Where an action is discontinued, that is such a final disposition as de- termines the right to costs. Van Wyck z-. Baker, n Hun (N. Y.) 309. Where costs were to abide the event in an action in which defendant inter- posed a counterclaim, held, the event on which costs depended was which party succeeded in getting judgment, the claims and demands of both par- ties being considered and adjusted. Chatfield v. Sedgwick, 4 C. P. Div. 459. Contra, Stooke v. Taylor, 5 Q.B. Div. 569. Where costs are to abide or follow the event it means the result or out- come of the litigation; and if there are several issues, it is to be read distribu- tivelyas " events," and costs follow to each party according to the issues or events on which they succeed. Myers v. Defries, 49 L. J. Ex. 266; Abbott v. Andrews, 51 L. J. Q. B. 641; Goutard v. Carr, 53 L. J. Q. B. 55 ; Hawke v. Brear, 54 L. J. Q. B. 315 ; Hardy v. Fetherstonhaugh, 10 B. & S. 628. Where there were several issues and the arbitrator only made a general finding for one party, the case was sent back for findings on the several issues, so that the question of costs could be determined. Ellis v. Desilva, 50 L. J. Q. B. 328. The general costs follow the general result or balance of the decision on the issues or events. Goutard v. Carr, 53 L. J. Q. B. 55 ; Lund v. Campbell, 54 L. J. Q. B. 281. Where in an arbitration costs were to abide the event, it means such an event as in law would entitle to costs. Hence if successful party would not be entitled to costs under the rules or statutes governing costs, he cannot ob- tain costs although successful in the arbitration. Ward v. Mallinder, 5 East 489 ; Swinglehurst v. Altham, 3 T. R. 38. Although costs be given to abide the event, the right to them depends on the right to general costs in the action; and if party finally successful is not en- titled to general costs, he cannot have costs given to abide the event. New v. Anthony, 4 Hun (N. Y.) 52, 6 Thomp. & C. (N. Y.) 243; Snyder v. Collins, 12 Hun (N. Y.) 383. 4. U. S. v. Beaty, Hempst. (U. S.) 496 ; Walker v. Barrow, 6 Minn. 508; Robbins v. Hudson River R. Co., 7 Bosw. (N. Y.) i ; Jacobsohn v. Bel- mont, 7 Bosw. (N. Y.) 14; Den v. Johnson, 18 N. J. L. 101. But where verdict is set aside as against the weight of evidence and new trial granted, costs should be awarded absolutely and not to abide the event, to be paid by the party on whose motion it is set aside. Peck v. Fonda, etc., R. Co., 25 N. Y. St. Rep. 95.6N.Y. Supp. 379,53 Hun (N.Y.)634; Maher v. Simmons, 47 Hun (N.Y.) 480. 59 Costs. ABIDING THE EVENT. the Costs. finally successful in the action, although he may not have been the party successful on the appeal on which the new trial was granted. 1 But where costs to abide event are given to a party specified as the appellant or respondent, that party only in general can have costs of appeal. 2 Where judgment is reversed and new Where a new trial is granted, costs to abide event, the event is the decis- ion on the particular ground on which the new trial was granted. Jones v. Williams, L. R. 8 Q. B. 280; Dawson v. Harris, n C. B. N. S. 801; 103 E. C. L. 799. Where new trial is granted, costs to abide the event, the new trial or the result thereof is the event which de- termines the right thereto. First Nat. Bank v. Fourth Nat. Bank, 84 N. Y. 470; Koon -v. Thurman, 2 Hill (N. Y.) 357, distinguishing Union Trust Co. v. Whiton, 78 N. Y. 491, in which it was held the court would not interfere with the discretion of the lower courts on this point. Where a decree of a surrogate ad- mitting a will to probate was reversed and a new trial granted, costs to abide the event, to be paid out of the estate to the one finally successful, were given. Lake v. Ranney, 33 Barb. (N. Y.) 70. 1. First Nat. Bank v. Fourth Nat. Bank, 84 N. Y. 469; Donovan v. Vande- mark, 22 Hun (N. Y.) 307; Tall v. Mo- hawk Valley, etc., Ins. Co., 15 How. Pr. (N. Y.) 315 ; Comly v. New York, i Civ. Pro. Rep. (N. Y.)3o6 ; Carney v. Rider, 2 Cow. (N. Y.) 617 ; Mott v. Consumers' Ice Co., 8 Daly (N. Y.) 244 ; Sanders v. Townshend, 63 How. Pr. (N. Y.) 343 ; Lotti v. Krakauer, i Civ. Pro. Rep. (N. Y.) 312, note; Van Wyck v. Baker, n Hun (N. Y.) 309; Isaacs v. New York Plaster Works, 43 N. Y. Super. Ct. 397; Flynn v. Equi- table Assur. Soc., 18 Hun (N. Y.) 212 ; Marx -v. McCloud, 21 N. Y. St. Rep. 957, 3 N. Y. Supp. 74, 50 Hun (N. Y.) 603; Koon v. Thurman, 2 Hill (N. Y.) 357- But in the first department (N. Y.) it is held only the appellant on the ap- peal can have the costs of appeal if he be finally successful, and that re- spondent cannot have them although he finally succeeds. Union Trust Co. v. Whiton, 17 Hun (N. Y.) 593; Sheri- dan v. Genet, 48 Hun (N.Y.) 17, note ; Lydd v. Kenny, I Civ. Pro. Rep. (N. Y.) 310, note ; Durant v. Abendroth, 48 Hun (N.Y.) 16, 15 N.Y. St. Rep. 342, 13 Civ. Pro. Rep. (N. Y.) 434; House v. Lockwood, 48 Hun (N. Y.) 550. And the court of appeals refused to inter- fere with this construction of its own orders by the lower court. Union Trust Co. v. Whiton, 78 N. Y. 491. South Carolina. But under statute of South Carolina as to costs, costs of appeal go to party successful on appeal whether finally successful or not. Huff -v. Watkins, 25 S. Car. 245; Cleveland v. Cohn, 13 S. Car. 397. Party Finally Successful not Entitled to Costs of Appeal. Where an order grant- ing a new trial with costs to abide the event was affirmed by the general term with costs, held, the party successful on appeal was entitled to costs of ap- peal although not finally successful. Stevenson v. Pusch,4o How. Pr. (N.Y.) 91. Party Successful Finally not Entitled to Costs of Intermediate Appeal. Where plaintiff succeeded on trial and at gen- eral term, but judgment was reversed by court of appeals and reargument ordered at general term with costs to abide the event, held, plaintiff not en- titled to costs of the first argument at general term. Bigler v. Pinkney, 24 Hun (N. Y.) 224. 2. Van Gelder v. Van Gelder, 84 N. Y. 658; Fischer v. Langbein, 31 Hun (N. Y.) 273; Donovan v. Board of Education, i Civ. Pro. Rep. (N. Y.) 311, note; Howell v. Van Siclen, 4 Abb. N. Cas. (N. Y.) i. But a Statute as to Costs Controls this Kule. Where costs are governed by statute and go as a matter of right to the party finally successful, he is enti- tled to the costs of an appeal which were expressly given to his opponent to abide the event. Murtha v. Cur- ley, 92 N. Y. 361, 65 How. Pr. (N. Y.) 86, 3 Civ. Pro. Rep. (N. Y.) 266; Re- vere Copper Co. v. Dimmock, 29 Hun (N. Y.) 299; Sanders v. Townshend, n Abb. N. Cas. (N. Y.) 217; Donovan v. Vandemark, 22 Hun (N. Y.) 307. When costs are a matter of right, the discretion given by statute on granting new trials is limited to costs in the appellate court. Sturgis v. Spofford, 58 N. Y. 103. 60 Costs. ABIDING THE EVENT. Funds in Court. trial granted with costs to abide the event, the finally successful party is entitled to the costs of the various trials, 1 and also all costs of the action up to that time, including costs in the appellate court. 2 In Equitable Actions the discretion of the court usually controls the rule. See COSTS. Test Action. Where it is stipulated that one or more actions shall abide the event of another, the result of the test action determines the costs of the others. 3 VI. FUNDS IN COURT. In many cases property in possession or under control of the court is held to abide the event of the court's action. 4 Where the decision of the appellate court was costs to abide event, but was erroneously entered as costs to appellant to abide event, the order will be corrected to conform to decis- ion. Martine v. Huyler, 34 N. Y. St. Rep. 326, 12 N. Y. Supp. 66; 58 Hun (N. Y.)6o8. Where judgment for plaintiff was reversed, with costs to defendant to abide the event, and afterwards defend- ant had leave to amend his answer on payment of costs to that time, held, this did not deprive defendant of his contingent right to costs given by the order reversing the judgment. Have- meyer v. Havemeyer, 62 How. Pr. (N. Y.) 4 ?6. . 1. Howell v. Van Siclen, 4 Hun (N. Y.) 425, 4 Abb. N. Cas. (N. Y.) i, 70 N. Y. 595; Isaacs v. New York Plaster Works, 43 N. Y. Super. Ct. 397; Carpenter v. Manhattan Ins. Co., 25 Hun (N. Y.) 194; Powers v. Manhattan R. Co., 20 Civ. Pro. Rep. (N. Y.) 73. But where plaintiff was nonsuited, and on appeal judgment was reversed, with costs to abide event, and plain- tiff was again nonsuited, held, de- fendant could not tax the costs of the first trial. Lydd v. Kenny, i Civ. Pro. Rep. (N. Y.) 311, note. 2. Franey v. Smith, 126 N. Y. 661, 37 N. Y. St. Rep. 480; Powers v. Man- hattan R. Co., 20 Civ. Pro. Rep. (N. Y.) 78, 14 Supp. N. Y. 130. Where the court of appeals re- verses a judgment and grants a new trial, with costs to abide the event, it means all costs of action up to and in- cluding the costs in the court of ap- peals, whether the action be legal or equitable, and the party finally suc- cessful is entitled to such costs. Fra- ney v. Smith, 126 N. Y. 661. Where in an action at law judgment for plaintiff was reversed by general term, with costs to abide event, but was affirmed by the court of appeals, with costs, and decision of general term reversed, held, plaintiff had a legal right to all costs of all courts. Revere Copper Co. v. Dimmock, 29 Hun (N. Y.) 299; Sanders v. Towns- bend, ii Abb. N. Cas. (N. Y.) 217. 3. Where it was stipulated that but one of a number of cases pending on appeal should be argued, and that the decision of the appellate court in the one should stand as the decis- ion in the others, held, that the party successful in the test case was entitled to costs of appeal in all the cases. Hauselt v. Godfrey, 3 Civ. Pro. Rep. (N. Y.) 116. Where it was f stipulated that several suits should abide the event of the one first tried, held, the party successful in the suit tried was entitled to costs in all the suits. Minturn v. Main, 2 Sandf. (N. Y.) 737. 4. In Interpleader Proceedings the fund in dispute must be brought into court to be held to await the event of the litigation. Van Zandt v. Van Zandt, 17 Civ. Pro. Rep. (N. Y.) 448, 26 N. Y. St. Rep. 963; Vosburgh v. Hunt- ington, 15 Abb. Pr. (N. Y.) 254; Fai- vre v. Union Dime Sav. Inst., 36 N. Y. St. Rep. 79; Johnston v. Stimmel, 26 Hun (N. Y.) 435 ; First Nat. Bank. v. West River R. Co., 46 Vt. 633; Russell v. First Presbyterian Church, 65 Pa. St. 9. References. Where part of an estate was held to belong to certain heirs, a reference was ordered to determine their shares, and the fund directed to be paid into court to abide the decis- ion of the referee. Betts v. Betts, 4 Abb. N. Cas. (N. Y.) 323, note. 61 ABORTION. I. DEFINED, 62. II. FORM OF INDICTMENT, 62. III. CERTAINTY, 63. IV. ALLEGATION OF PREGNANCY, 63. V. ALLEGATION OF INTENT, 64. VI. SPECIFYING MEANS, 64. VII. NEGATIVING EXCEPTIONS, 64. VIII. JOINDER OF COUNTS, 65. I. DEFINED. Any person who does any act calculated to pre- vent a child being born alive is guilty of abortion. 1 II. FORM OF THE INDICTMENT. In drafting an indictment for abortion it is sufficient to follow the words of the statute defining the crime.* 1 Amer. and Eng. Ency. Law, tit. Abortion. See the full definition in N. Y. Penal Code, 294. 2. The following forms of indict- ment were held sufficient : Averring that the defendant on the I5th of January, 1857, at Ludlow, " with force and arms, maliciously and without lawful justification, did force and thrust a certain metallic instru- ment, which he, the said Wood, then and there had and held in his hand, into the womb and body of a certain woman by the name of Sarah Chaffee, she, the said Sarah, being then and there pregnant with child, with the wicked and unlawful intent of him, the said Wood, then and there thereby to cause and procure the said Sarah to miscarry and prematurely to bring forth the said child with which she was then and there pregnant as afore- said ; and the said Sarah," at said place and time, " by means of the said forcing and thrusting of said instru- ment into the womb and body of the said Sarah in manner aforesaid, did bring forth said child, of which she was so pregnant, dead; against the peace, and contrary to the form of the statute in such case made and provided." Com. v. Wood, n Gray (Mass.) 85. See Com. v. Jackson, 15 Gray (Mass.), 187 ; Com. v. Brown, 121 Mass. 69. " That at said county of Orange, in the State of Indiana, on the 2gth day of August, 1878, William F. Sher- wood, Jr., and Arcus Lindley did then and there unlawfully and wil- fully employ and use in and upon the body and womb of one Emma King, who was then and there a pregnant woman, as the said William F. Sher- wood, Jr., and Arcus Lindley well knew, a certain instrument called a catheter, with intent then and there and thereby to procure and produce the miscarriage of the said Emma King, it not being then and there necessary to cause said miscarriage to preserve the life of the said Emma King." State v. Sherwood, 75 Ind. 15. As to what form the indictment should take see the following cases, where indictments were construed : Dougherty v. People, i Colo. 514 ; State v. Mclntyre, 19 Minn. 93 ; 62 Certainty. ABORTION. Allegation of Pregnancy. III. CERTAINTY Taking medicine. The indictment, while it must be certain, need not be more than reasonably certain. It is not necessary to aver that the medicine advised to be taken was actually taken. 1 The Kind of Wound. The indictment need not show what kind of a wound an instrument used for abortion produced, nor what dis- ease it caused. 2 The Term "Womb." The term "womb" need not be used. Any equivalent words are sufficient. 3 Description of Person. The indictment need not expressly allege that the abortion was committed on a " woman." Giving her name is sufficient. 4 " Maliciously and Feloniously." Nor need the indictment allege that the crime was done " maliciously and feloniously." 5 IV. ALLEGATION OF PREGNANCY. The allegation of pregnancy is a material one, and its omission is fatal. 6 Attempting to Procure. But where the indictment is only for at- tempting to procure an abortion such allegation is not necessary. 7 People v. Stockham, i Park. Cr. Rep. (N. Y.) 424 ; U. S. v. May, 2 McAr- thur (D. C.) 512, an indictment in the District of Columbia. See also 3 Chit- ty's Criminal Law, 797, for a form under the old English practice. 1. State v. Murphy, 27 N. J. L. 112. And where the indictment is for pro- curing the woman to take drugs, it is not necessary to allege that she swal- lowed them. State v. Owens, 22 Minn. 238. But see Lamb z>. State, 67 Md. 524, where it was held that the indictm'ent must allege that the woman took the drugs. 2. Rhodes v. State, 128 Ind. 189. 3. Baker v. People, 105 111. 452, where the term " private parts" was used. Compare Com. v. Corbin, 136 Mass. 429; Traylor v. State, 101 Ind. 65- 4. Com. v. Boynton, 116 Mass. 343. But the verdict must show that the crime was committed on the person named in the indictment; where the verdict found the defendant guilty of using instruments "upon the person of a pregnant woman," without nam- ing her, this was held defective. Cobel v. People, 5 Park. Cr. Rep. (N. Y.) 348- 5. Com. ^.Jackson, 15 Gray (Mass.) 187; Com. v. Sholes, 13 Allen (Mass.) 554; Holland v. State, 131 Ind. 568, holding that the use of the words "feloniously and unlawfully" in an indictment applies to both the intent and the act. In Com. v. Thompson, 108 Mass. 461, it was held that the averment that the defendant "maliciously and without any lawful justification," sufficiently alleged the crime under a statute making it a crime to " unlaw- fully " cause a miscarriage. 6. Com. v. Bangs, 9 Mass. 386; Com. v. Parker, 9 Met. (Mass.) 263; 43 Am. Dec. 396; State v. Reed, 45 Ark. 333; State v. Emerich, 13 Mo. App. 492; State v. Emerich, 87 Mo. no. But not where the statute defin- ing the crime omits to state that the offense must be committed on a preg- nant woman. Com. v. Wood, n Gray (Mass.) 86; Com. v. Follansbee, 155 Mass. 274; Com. v. Taylor, 132 Mass. 261. Equivalent Words. Instead of using the words " pregnant woman" the indictment may charge the offence to have been committed upon " a woman with child." Eckhardt v. People, 83 N. Y. 462; 38 Am. Rep. 462. Good for Misdemeanor. The omission of an allegation of pregnancy, while fatal to the indictment as a charge of felony, is still good as charging a mis- demeanor, if the other elements are alleged. State v. Reed, 45 Ark. 333- Allegation of death. The indictment need not allege that the woman either did or did not die. Com. v. Thomp- son, 108 Mass. 461. 7. Com. v. Tibbetts, 157 Mass. 519 ; Mills ?'. Com., 13 Pa. St. 630. Allegation of Intent. ABOR TION. Negativing Exceptions. V. ALLEGATION OF INTENT. The intent to commit the abortion must be alleged. 1 But the allegation of intent need not always be expressly made ; it may be inferred from other allegations. 2 VI. SPECIFYING MEANS Naming Medicine. The particular kind of medicine used to accomplish the abortion need not be stated. 3 Describing Instruments. Nor need the indictment describe the in- struments used. 4 VII. NEGATIVING EXCEPTIONS General Rule. Where an act is made criminal, with exceptions embraced in the same clause of the statute which creates the offence, so as to be descriptive of the offence intended to be punished, the indictment stating the act to have been done must negative the exceptions so as to show affirmatively that the precise crime defined has been committed. 5 Therefore, as the statutes defining the crime of abortion con- tain certain exceptions, these exceptions must be negatived. 6 1. People v. Lohman, 2 Barb. (N.Y.) 216 ; State v. Drake, 30 N. J. L. 422, where it was held that the intent to both cause and procure the miscarriage must be alleged. 2. Scott v. People, 141 111. 195, where the allegation of the use of instrument was held sufficient as showing intent. Navarro v. State, 24 Tex. App. 378, an allegation of assault. Miscarriage of Mother. Alleging that the defendant intended to cause the miscarriage of the mother, instead of charging the intent to cause the abor- tion of the child, is sufficient. Mills v. Com., 13 Pa. St. 670. Omission to Aver. Where an indict- ment omits to aver an intent to de- stroy the child, a conviction may be had thereon for a misdemeanor. Loh- man v. People, i N. Y. 379; 49 Am. Dec. 340. Compare Ciichton v. People, 41 N. Y. 341. 3. Carter v. State, 2 Ind. 617 ; State v. Reed, 45 Ark. 333 ; Com. v. Morri- son, 16 Gray (Mass.) 224 ; State v. Van Houten, 37 Mo. 357 ; Watson v. State, 9 Tex. App. 237. Sufficient Averment. The averment that it was a drug calculated to pro- duce abortion is sufficient. Watson v. State, 9 Tex. App. 237. Must Allege that the Medicine was Ad- ministered. A charge in the indict- ment that the defendant administered a certain poison, or drug, or medicine is bad where it does not charge that he administered the whole of the pro- hibited things, nor any one of them. State v. Drake, 30 N. j'. L. 422. Finding by Jury. The jury in their finding need not find the character or quality of the drug. State z>. Owens, 22 Minn. 238. Precedents of Indictments. See the following cases, where the kind of medicine was stated in the indictment : Rex v. Cadman, i Moo. C. C. 114 ; Rex -v. Scudder, i Moo. C. C. 216 ; Rex v. Harley, 4 C. & P. 369; 19 E. C. L. 423; Rex v. Coe, 6 C. & P. 403; 25 E. C. L. 458 ; Reg. v. Farrow, Dears. & B. C. C. 164 ; Rex v. Phillips, 3 Campb. 77. 4. Com. v. Thompson, 159 Mass. 56. But the indictment alleged that the in- strument was unknown. And where it is charged that the abortion has been made with several different in- struments, it is sufficient if the proof shows that any one of the instruments was used. Scott v. People, 141 111. 195. See State v. Barker, 28 Ohio St. 583- 5. Beasley v. People, 89 111. 571. 6. The most usual exception in abortion statutes is that which allows an abortion to be committed on the advice of a certain number of physi- cians. This exception must be nega- tived. State v. Meek, 70 Mo. 355; 35 Am. Rep. 427 ; State v. Mclntyre, 19 Minn. 93. New Jersey. If the negative allega- tion that the mother or child did not die, which lessens the punishment under the statute, be necessary in the indictment, 53 of the Criminal Pro- cedure Act requires that any objection to the omission shall be taken before 64 Joinder of Counts. ABORTION. Joinder of Counts. Manner of Negativing. The precise words of the statute need not be negatived. Equivalent words are sufficient. 1 VIII JOINDER OF COUNTS. The indictment for abortion may contain several counts. 2 Specifying Different Means. The use of different counts is generally adopted for the purpose of alleging the same abortion to have been committed by different means. It is the practice in charg- ing the same crime in different ways. Such practice is allowable. 3 the jury is sworn, and it is then amend- able. State v . Gedicke, 43 N. J. L. 87. Texas. In an indictment under Pasch. Dig., art. 2196, for abortion, it is not necessary that the indictment should negative the existence of the circumstances which would justify the act under art. 2197. State v. Russe, 41 Tex. 33. 1. Sufficient Negative Allegations. The allegation " it not being then and there necessary to cause such miscar- riage for the preservation" of the life of the patient sufficiently negatives the exception in the statute providing that " unless the same were done as necessary for the preservation of the mother's life." Beasley v. People, 89 111. 572. An allegation " that procurement of miscarriage was not necessary to pre- serve life" is equivalent to "that mis- carriage was not necessary to preserve life" and sufficient. Willey v. State, 52 Ind. 246. See also Hatchard v. State, 79 Wis. 357. Insufficient Negative Allegations. "The employment of said instrument not being necessary to preserve the life of the woman" does not negative the exception that "the miscarriage was not necessary to save the life of the woman." Bassett v. State, 41 Ind. 303- Averring that the use of instru- ments was not necessary to save the life of the woman does not negative "unless miscarriage is necessary to save the life of the woman." Bassett v. State, 41 Ind. 303 ; Willey v. State, 46 Ind. 363. See State v. Vawter, 7 Blackf. (Ind.) 592. 2. Com. -v. Follansbee, 155 Mass. 274 ; State v. Slagle, 82 N. Car. 653. I Encyc. PI. & Pr. 5. 65 Abortion and Manslaughter. Abor- tion and involuntary manslaughter may be charged in one count. Tray- lor v. State, 101 Ind. 65. 3. Peoples. Davis, 56 N. Y. 95; Davis v. People, 2 Thomp. & C. (N. Y.) 212 ; State -v. Owens, 22 Minn. 238, where the indictment alleged in the alter- native the use of different means ; Lyons v. People, 68 111. 271 ; Beasley v. People, 89 111. 571 ; Com. v. Thomp- son, 159 Mass. 56 ; Rhodes v. State, 128 Ind. 189, where the indictment showed both miscarriage and death ; Com. v. Brown, 14 Gray (Mass.) 419, where, an allegation about the inser- tion of the hand was held surplusage; Com. v. Holmes, 103 Mass. 440, where it was held that the omission to aver that the different counts were different descriptions of the same offence was cured by verdict ; Com. v. Adams, 127 Mass. 15 ; Com. v. Snow, 116 Mass. 47 ; Wandell v. State (Tex. Cr. App. 1894), 25 S. W. Rep. 27, where the in- dictment was held bad for duplicity, in having only one count. See Rail- ing v. Com., no Pa. St. 100. Result of Different Means. Where the indictment has two counts, one charg- ing the crime to have been committed by instruments, the other by means of medicines, under such an indictment it may be shown that the abortion was the result of both means. Tabler v. State, 34 Ohio St. 127. See State v. Baldwin, 79 Iowa 737 ; Com. v. Brown, 14 Gray (Mass.) 419; Montgomery v. State, 80 Ind. 338; 41 Am. Rep. 815 ; Com. v. Grover, 16 Gray (Mass.) 602 ; People v. Aiken, 66 Mich, 460 ; n Am. St. Rep. 512 ; Armstrong v. People, 37 111. 459 ; State v. Hollenbeck, 36 Iowa 112. ACCESSORIES AND THE LIKE. I. DEFINED, 66. 1. Principals, 66. 2. Accessories, 66. II. PRINCIPALS IN THE SECOND DEGEEE, 67. HI. ACCESSORY BEFORE THE FACT, 68. IV. ACCESSORY AFTER THE FACT, 69. V. DISTINCTION BETWEEN ACCESSORIES AND PRINCIPALS ABOLISHED, 69. 1. Generally, 69. 2. Accessory may be Charged as Principal, 70. 3. May be Treated as Accessory, 70. 4. Haw to Allege the Offence where Accessory Treated as Principal, 70. 5. Alleging Offence where Accessory Treated as suc/t, 70. 6. May be Charged as both Principal and Accessory, 71. 7. Principal need not be first Convicted, 71. 8. May be Convicted as either Principal or Accessory, 71. 9. Statute does not affect Accessory After the Fact, 72. 1. DEFINED 1. Principals. The principal in the commission of a crime may be in one of two degrees. 1 Principal in the First Degree. A principal in the first degree is he that is the actor or actual perpetrator of the crime. a Principal in the Second Degree. A principal in the second degree is he who is present aiding and abetting the fact to be committed. 3 2. Accessories Before the Fact. An accessory before the fact is he that, being absent at the time of the actual perpetration of the felony, procures, counsels, commands, incites, or abets another to commit it. 4 After the Fact. An accessory after the fact is where a person knowing a felony to have been committed receives, relieves, com- forts, or assists the felon. 6 1. Chitty on Criminal Law, vol. i, be strict, actual, and immediate so as 255 ; i Hale, 233, 615 ; 4 Bla. Com. to make the person an eye- or ear-wit- 34 ; 4 Burr 2074. ness of what passes ; it may be a con- 2. Chitty on Criminal Law, vol. I, structive presence. Com. v. Knapp, 255 ; Com. v. Knapp, 9 Pick. (Mass.) 9 Pick. ^Mass.) 517. 516, 517 ; i Hale 233, 615 ; 4 Bla. 4. Chitty on Criminal Law, vol. i. Com. 34; 4 Burr 2074. 262 ; i Hale 615 ; 4 Bla. Com. 3. Chitty on Criminal Law, vol. I, 36. 255; 4 Burr 2074; i Hale 233, 615; 5. Chitty on Criminal Law, vol. r, 4 Bla. Com. 34. 264 ; i Hale 618 ; 4 Bla. Com. 37; Constructive Presence. It is not nee- Com. Dig., Justices, T. 2. See People essary, however, that this presence v. Dunn, 53 Hun (N. Y.) 381. 66 Principals in the ACCESSORIES. Second Degree. II. PRINCIPALS IN THE SECOND DEGREE No Distinction by Early Law. A principal in the second degree was unknown to the early common law. He was regarded as an accessory before the fact, and he was not liable to be brought to trial till the principal of- fenders were convicted or outlawed. 1 Distinction Made. But as this rule was productive of much mis- chief, the judges by degrees adopted a different rule, and at length it became settled law that all those who were present, aiding and abetting, are principals in the second degree, and could be prose- cuted though the principal in the first degree is neither outlawed nor found guilty. 2 May Be Charged as Principal in the First Degree. The principal ill the second degree may now be charged as principal in the first degree. 3 No Evidence Showing Principal in First Degree Guilty. But one can- not be convicted as principal in the second degree where there is no evidence of the guilt of the principal in the first degree. 4 Form of indictment. When several are present and abet a fact, an indictment may lay it generally as done by all, or specially as done by one and abetted by the rest. 5 Joinder of Offenders. The principal in the second degree may be included in the indictment with the principal in the first 1. Russell on Crimes, vol. i, 49; Coal- heavers' Case, i Leach 66 ; Post. 428 ; Rex -v. Towle R. & R. 314 ; Chitty's Criminal Law, vol. i, 256 ; I Hale 437. 2. Russell on Crimes, vol. i, 49. This law was by no means settled till after the time of Edw. III. Russell on Crimes, vol. i, 49 ; 9 Co. 67 b ; Plowd. 98 a ; I Hale 437 ; Hawk, b. 2, c. 29, s. 37; Chitty's Criminal Law, vol. i, 256. 3. Com. -v. Chapman, n Cush. (Mass.) 422; Com. v. Fortune, 105 Mass. 592. See People v. Bearss, 10 Cal. 69; Thompson v. Com., i Mete. (Ky.) 13- Surplusage. Where the indictment charges one as principal in the second degree, but alleges such acts on his part as make him a principal in the first degree, the words "principal in the second degree " may be rejected as surplusage. Hansford v. State, 54 Ga. 55. To be Convicted as Charged. On an indictment charging a defendant as principal in the first degree, he cannot be convicted as principal in the second degree. Washington v. State, 36 Ga. 222; Shaw v. State, 40 Ga. 120. See McCoy v. State, 52 Ga. 287. And con- versely, one indicted as principal in the second degree cannot be convicted as a principal in the first degree. Kess- ler v. Com., 12 Bush (Ky.) 18. 4. Jones v. State, 64 Ga. 697. See Hansford v. State, 54 Ga. 55; State v. Clayton, n Rich. (S. Car.) 581; State 'v. Carver, 49 Me. 588; State v. Jen- kins, 14 Rich. (S. Car.) 215. 5. "Russell on Crimes, vol. i, 5-7; 2 Hawk. P. C. c. 23, s. 76, and c. 25, s. 64; Rex v. Young, 3 T. R. 98. No Difference in Punishment. And even in offences in which there would have been only one principal in the first degree, as in rape, a charge against all as principals in the first de- gree is valid, if there be no difference in the punishment between the prin cipals in the first and those in the second degree. Rex -v. Vide, Fitz. Corone, pi. 86; Rex v. Burgess, Tr. T. 1813; Russell on Crimes, vol. i, 57- Presence. An indictment against the principal in the second degree in murder should show distinctly that he was present when the mortal stroke was given. Rex v. Winifred, i Leach 515; Russell on Crimes, vol. i, 57; Heydon's Case, 4 Co. 41 a, 42 b; Rafferty's Case, 2 Lewin 271; Reg v. Ramsden, i Cox C. C. 37. 67 Before the Fact. ACCESSORIES. Before the Fact. degree. All the offenders may be included in the same indict- ment. 1 III. ACCESSORY BEFORE THE FACT Must be Indicted as Such. The distinction between principal and accessory is not a formal one, but material, and relates to the regularity of criminal proceed- ings ; and therefore one indicted as principal cannot be con- victed as accessory before the fact. He must be indicted as an accessory. 8 Joinder with Principal. It is usual and proper to include both the principal and the accessory before the fact in the same indict- ment. 3 Indicted Alone. But the accessory before the fact may be indicted alone. 4 Principal Must be Convicted. It was a drastic principle of the com- mon law that an accessory before the fact could not be convicted unless the principal was. 5 1. Chitty's Criminal Law, vol. I, 267; 2 Hale 173; 2 Burr 984; I Sess. Cas. 426; Hawk. b. 2, c. 25, s. 89; Com. Dig. Indictment, F; Bac. Abr. Indictment, G. 5; Cro. C. C. 41, 42; Burn J. Indictment, IV; Rex v. Har- tall, 7 C. & P. 475; 32 E. C. L. 589; Rex v. Haynes, 4 M. & S. 221; Rex v. Nelms, 6 C. & P. 347; 25 E. C. L. 432; Heydon's Case, 4 Co. 41 a. See also State v. Taylor, 21 Mo. 477; Rex v. O'Brian, I Den. C. C. 9; Rex v. Har- grave, 5 C. & P. 170; 24 E. C. L. 260; State v. Pile, 5 Ala. 72; Parker's Case, 2 Dy. 186 a. 2. People v. Katz, 23 How. Pr. (N. Y. Supreme Ct.) 93; State v. Wyckoff, 31 N. J. L. 65; Keithler v. State, 10 Smed. & M. (Miss.) 192; George v. State, 39 Miss. 570; Phillips v. State, 26 Tex. App. 228; Josephine v. State, 39 Miss. 613; Hughes v. State, 12 Ala. 458; Norton v. People, 8 Cow. (N. Y ) 137; Hatchettz/. Com., 75 Va. 925. See State v. Mairs, i N. J. L. 453. 3. Chitty's Criminal Law, vol. I, 272; Keech v. State, 15 Fla. 592; Loyd v. State, 45 Ga. 57; State v. York, 37 N. H. 175; Holmes v. Com., 25 Pa. St. 221; Mulligan v. Com., 84 Ky. 229; Post. 365; i Hale. 623; Burn. J. Acces- sories, IV; Williams J. Accessories, V Com. Dig. Justices T. 3; Sampson v. Com., 5 W. & S. (Pa.) 385. Form of Indictment. Where the par- ties are thus joined in the same pro- ceeding, the proper course is first to state the guilt of the principal, as if he alone had been concerned, and then to state "that C. D., late of, etc., before the committing of the said felony and murder in form aforesaid, to wit, on, etc., with force and arms, etc., did maliciously and feloniously incite, move, procure, aid, and abet the said A. B. to do and commit the said felony in manner aforesaid, against the peace." Chitty's Criminal Law, vol. i, 272. See form i, Leach 515; Wil- liams J. Accessories, V. Two Counts. The indictment may contain two counts, one charging both defendants as principals, the other charging one defendant as principal and the other as accessory before the fact. Josephine v. State, 39 Miss. 615. 4. Chitty's Criminal Law, vol. I, 273 ; Bishop on Criminal Procedure, vol. 2, s. ii. Necessary Averments. In an indict- ment against the accessory alone, after the conviction of the principal, it is not necessary to aver that the latter committed the felony, but it is suf- ficient to recite with certainty the rec- ord of the conviction. Chitty's Crim- inal Law, vol. i, 273. See 7 T. Rep. 465 ; Post. 365 ; Com. Dig. Justices T. 3 ; State v. Crank, 2 Bailey (S. Car.) 67. 5. Tully v. Com., n Bush (Ky.) 154 ; State v. Serau, 28 N. J. L. 519; Arm- strong v. State, 28 Tex. App. 526 ; Com. v. Phillips, 16 Mass. 423; Ander- son -v. State, 7 Ohio 250 ; Com. v. Kaas, 3 Brews. (Pa.) 422 ; Holmes v. Com., 25 Pa. St. 221. Where the prin- cipal and accessory were tried together, the principal must first be convicted ; if the jury acquitted him, this acquit- 68 After the Fact. ACCESSORIES. Distinction Between. Accessory to Several Defendants. But where there are several offend- ers, some of whom have been convicted, the accessory may bt tried for being accessory to those convicted. 1 IV. ACCESSOKY AFTER THE FACT Joinder with Principal. The acces- sory after the fact could be joined in the same indictment with the principal. 2 Averment of Knowledge. The averment of knowledge is indispensa- bly requisite. 3 Allegations of Manner. It is not necessary to use the word " acces- sory " in the indrctment, or to set forth the manner and means by which the accessory after the fact received, concealed, or comforted the principal. 4 Aconittal of Principal. The acquittal of the principal acquitted the accessory after the fact. 5 V. DISTINCTION BETWEEN ACCESSORIES AND PRINCIPALS ABOLISHED 1. Generally. In some states the distinction between accessories ted the accessory. Chitty's Criminal Law, vol. i, 272. And even if the principal died before conviction, the accessory could not be tried without his consent. Com. v. Phillips, 16 Mass. 422. Verdict Against Accessory. If the ac- cessory were tried separately, and a verdict of guilty rendered, and subse- quently the principal was acquitted, no judgment could be rendered on such a verdict. The accessory was entitled to go free. Bowen v. State, 25 Fla. 645 ; McCarthy v. State, 44 Ind. 214. See Groves -v. State, 76 Ga. 808 ; Loyd v. State, 45 Ga. 58. 1. Stoops w. Com., 78. &R. (Pa.) 491; Com. v. Knapp, 10 Pick. (Mass). 477 ; Starin v. People, 45 N. Y. 333 ; Baron v. People, i Park. Cr. Rep. (N. Y.) 246. See Com. -v. Glover, in Mass. 395 ; Com. v. Adams, 127 Mass. 15 ; Sampson v. Com., 5'W. & S. (Pa.) 385. 2. Chitty on Criminal Law, vol. I, 272 ; Post' 365 ; i Hale 623 ; Burn J. Accessories, IV; Williams J. Acces- sory, V. ; Com. Dig. Justices T. 3. Form of Indictment. Where a man is indicted as an accessory after the fact, together with his principal, the orig- inal felony is to be stated as though against the principal alone, and the conclusion must aver that the acces- sory did receive, harbor, and maintain the principal felon, well knowing he had committed the felony. Chitty's Criminal Law, vol. I, 273. Same Count. Principals and acces- sories after the fact may be included in the same count of the indictment. Bullock v. State, 10 Ga. 48. Massachusetts. The principal and accessory may be joined in an indict- ment for stealing and receiving stolen goods. Com. -v. Adams, 7 Gray (Mass.) 43- The form of the indictment in such case is as a "felonious accessory." Com. v. Andrews, 3 Mass. 126. See Rohan v. Sawin. 5 Cush. (Mass.) 287. But this is probably the case of making one guilty of receiving stolen goods an accessory before the fact, in- stead of after. 3. i Hale 622 ; Com. Dig. Justices T. 2 ; Hawk. b. 2, c. 29, s. 33 ; Burn J. Indictment, III ; 2 Lev. 208 ; State v. Davis, 14 R. I. 281 ; Chitty's Criminal Law, vol. i, 273. . See also Blakeley v. State, 24 Tex. App. 616, where the form of the allegation of knowledge was approved; Tullyz/. Com., n Bush (Ky.) 155- 4. Chitty's Criminal Law, vol. i, 273 ; 3 P. Wms. 477 ; Co. Ent. 56, 57 ; Rast. Ent. 48, 51; 9 Co. 114; Hawk, b. 2, 29, s. 17. Surplusage. Where an indictment for an offence of being accessory after the fact to a theft alleged, as acts constituting the aid and assistance given the principal, that the defendant concealed him, it was held that the indictment was not vitiated by the al- legation of other acts besides the con- cealment. State v. Smith, 24 Tex. 285. 5. Chitty on Criminal Law, vol. i, 272. And this was so even if the principal was acquitted on the ground of infancy. Edwards v. State, 80 Ga. 127. 69 Distinction Between ACCESSORIES. and Principals Abolished. before the fact and principals is abolished, and all of them are made principals. 1 2. Accessory may be Charged as Principal. Where this is the case the accessory may be indicted and convicted as though he were a principal. 2 3. May be Treated as Accessory. Though the statute abolishes the distinction between accessory before the fact and principal, the accessory may still be treated as such ; the indictment may charge the accessory as a principal, or allege the matter according to the facts. 3 4. How to Allege the Offence when Accessory Treated as Principal. It is sufficient to allege in the indictment that the accessory him- self committed the crime. 4 5. Alleging Offence when Accessory Treated as Such Common law Indictment Sufficient. If an indictment charges facts sufficient to con- stitute the defendant an accessory before the fact at common law, it sufficiently charges him as principal under the statute, and need not allege further matter which might be proved without pleading if the defendant had been charged directly as principal. 5 1. People v. Bearss, 10 Cal. 68; Bax- ter v. People, 8 111. 368; Wicks v. State, 44 Ala. 398. See also the other cases collected under this section. Distinction not Abrogated. A statute which provides that an accessory be- fore the fact "may be indicted and convicted of a substantive felony whether the principal felon shall or shall not have been convicted, or shall or shall not be amenable to jus- tice," does not abrogate the distinc- tion between principal and accessory, but clearly preserves the difference between the two. State v. Ricker, 29 Me. 84. 2. State v. Pugsley, 75 Iowa 742 ; Com. v. Hughes, 33 Leg. Int. (Pa.) 44; Campbell v. Com., 84 Pa. St. 187; Brandt v. Com., 94 Pa. St. 290 ; State v. Cassady, 12 Kan. 551 ; State v. O'Neal, I Houst. Cr. Cas. (Del.) 58 ; State v. Chapman, 6 Nev. 320 ; State v. Orrick, 106 Mo. in ; Bonsell v. U. S., I Greene (Iowa) in. Punishment the Same. When prin- cipals in the first and second degrees are punished alike no distinction need be made between them in the indict- ment. Leonard v. State, 77 Ga. 764. 3. State v. Payton, 90 Mo. 220; State v. Anderson, 89 Mo. 313; Territory v. Guthrie, 2 Idaho 398. It is better practice to treat the ac- cessory in the indictment as such than as principal. People v. Schwartz, 32 Cal. 161. Contra. When a statute makes all accessories principals, they must be indicted as principals and not other- wise. Coates v. People, 72 111. 303, 304 ; Dempsey v. State, 47 111. 323 ; Baxter v. People, 8 111. 369 ; People v. Campbell, 40 Cal. 129. 4. People v. Rozelle, 78 Cal. 84 ; State v. Chapman, 6 Nev. 320; States. Pile, 5 Ala. 72. See State v. Rose, 20 La. Ann. 143 ; State v. Littel (La. 1893), 12 So. Rep. 750. When Necessary to Set Out the Aiding and Abetting. Where the distinction between accessories and principals is abolished, in all cases of felony, where by the statute creating the offence, or by the existing common law, only per- sons of a certain class, or standing in a certain relation, are competent to commit such felony, the indictment against aiders and abettors not belong- ing to such class, or standing in such relation, must set out the aiding and abetting in which alone the crime con- sists. Shannon v. People, 5 Mich. 72, where the crime charged was the counselling the abandoning a child. 5. People v. Rozelle, 78 Cal. 84. The acts of the accessory should be stated as fully in the indictment as they are in the statute. People v. Schwartz, 32 Cal. 161. See People v. Campbell, 40 Cal. 129. 70 Distinction Between ACCESSORIES. and Principals Abolished. Must Show Principal Committed the Offence. The indictment must show that the principal committed the offence. 1 Name of Principal. The name of the principal is a material allega- tion ;n such form of an indictment. 2 statutory Allegation. When a statute provides that the indictment shall allege that the defendant was an accessory, an omission of this allegation is fatal even after verdict. 3 6. May be Charged as both Principal and Accessory. Although a statute may abolish the distinction between principal and ac- cessory, it is yet optional for the pleader to treat an offender as both a principal and an accessory before the fact in the same indictment. 4 7. Principal need not be first Convicted. The chief effect of the statute abolishing the distinction between principal and ac- cessory is that it is no longer necessary to first convict the princi- pal before convicting the accessory. He may be convicted al- though the principal is not tried at all or has been acquitted. 5 8. May be Convicted as either Principal or Accessory indicted as Principal. One indicted as principal may be convicted as an ac- cessory before the fact. 6 Indicted as Accessory. And conversely, one indicted as accessory may be convicted on evidence showing him a principal. 7 1. People -v. Crenshaw, 46 Cal. 66 ; People v. Thrall, 50 Cal. 415 ; People v. Schwartz, 32 Cal. 161 ; Ulmer v. State, 14 Ind. 52. 2. People v. Coyodo, 40 Cal. 586. 3. Sage v. State, 120 Ind. 201. 4. People -v. Davidson, 5 Cal. 134; People v. Valencia, 43 Cal. 552 ; People v. Shepardson, 48 Cal. 187. Separate Counts. An indictment against two persons may charge in one count one as principal and the other as accessory, and in another count the latter as principal and the former as accessory. People v. Valencia, 43 Cal. 552. See Methard v. State, 19 Ohio St. 363- One Count. Both the offences of be- ing principal and accessory may be charged in one count. Hartshorn v. State, 29 Ohio St.. 635. Comp. State v. Hollenscheit, 61 Mo. 303 ; State v. Davis, 29 Mo. 392 ; State v. Taylor, 21 Mo. 477 ; Allen v. State, 10 Ohio St. 288. 5. Hartshorn v. State, 29 Ohio St. 635 ; Com. v. Kelly, 10 L. Bar. (Pa.) 107 ; People v. Kief, 126 N. Y. 661 ; People v. Newberfy, 20 Cal. 440 ; People v. Bearss, icCal. 68 ; People v. Outeveras, 48 Cal. 19 ; People v. Ah Fat, 4.8 Cal. 61 ; Gains v. State, 46 Ohio St. 457 ; State v. Anderson, 89 Mo. 312 ; Noland v. State, 19 Ohio 131 ; Brown v. State, 18 Ohio St. 497. See People v. Lyon, 99 N. Y. 210. Evidence must Show Principal Guilty. Although the principal has not been convicted, still the evidence must show him guilty. Searles v. State, 6 Ohio Cir. Ct. 331 ; Baxter v. People, 7 111. 578. North Carolina. The statute dis- penses with the necessity of the con- viction of the principal felon before an accessory can be tried and punished, but the common-law rule, that an ac- quittal of the principal is an acquittal of the accessory, is still in force. State v. Jones, 101 N. Car. 719. 6. Dempsey v. People, 47 111. 323 ; Hanoff v. State, 37 Ohio St. 178 ; State v. Hessian, 58 Iowa 68 ; Bonsell v. U. S., I Greene (Iowa) in ; State v. Brown, 25 Iowa 561 ; State v. Thorn- ton, 26 Iowa 79 ; State v. Comstock, 46 Iowa 265 ; Collins v. State, 88 Ga. 347- Contra. People v. Trim, 39 Cal. 75 ; People v. McGungill, 41 Cal. 429 ; Smith v. State, 37 Ark. 274 ; Williams v. State, 41 Ark. 173. 7. State v. Ross, 29 Mo. 32. See Benge v. Com., 92 Ky. i. Distinction Between ACCESSORIES. and Principals Abolished. 9. Statute does not Affect Accessory After the Fact Not to be Charged as Principal. The statute only abolishes the distinction be- tween principal and accessory before the fact. The accessory after the fact is left as at common law ; he must be indicted as such, and cannot be treated as a principal. 3 3. State v. Allen, 37 La. Ann. 685 ; Wade v. State, 71 Ind. 535 ; Reynolds v. People, 83 111. 479 ; People v. Gassa- way, 28 Cal. 405 ; People v. Keefer, 65 Cal. 232. Contra. He may be convicted as an accessory after the fact, though in- dicted as principal. Yoe v. People, 49 111. 410. The reason that an accessory after the fact cannot be treated as a princi- pal depends not upon questions of pro- cedure so much as it does on the nature of his crime. " The offense of which an accessory after the fact may be guilty is not included, nor has it any connection with the principal crime. This is apparent from the def- initions given in our statute and in the common law. The one cannot be committed until the principal offense is an accomplished fact. Persons oc- cupying a certain relation to the of- fender are excluded from the operation of the statute. The guilty knowledge, which is 'the essence of the offense, comes after the principal crime is com- mitted, and of course they can have no connection with each other. But no better test need be sought than the fact that a party indicted as a principal and acquitted may yet be indicted as an accessory after the fact, or if in- dicted as an accessory after the fact and acquitted he may be indicted as a principal; and the reasons assigned in the common-law authorities is that they are offenses of several natures. Hence a conviction for one is no bar to a prosecution for the other." Per Scott, J., in Reynolds v. People, 83 111. 479, 481. " There is an important and material difference between an accessory before the fact and an accessory after the fact. The former is a principal and is to be punished as a principal. If found guilty as an accessory to the commis- sion of a robbery before the act of robbery is perpetrated, he may be punished by imprisonment in the state prison for any length of time between one year and the time of his death. But if a person be found guilty as an accessory after the fact, the statute provides that he shall be imprisoned for any term not exceeding two years, and fined in a sum not exceeding five thousand dollars, according to the cir- cumstances of the case and the enor- mity of the crime." Per Curry, J., in People v, Gassaway, 28 Cal. 405, 406. Evidence. But the fact that one in- dicted as a principal cannot be con- victed as an accessory after the fact should not be confounded with the rule of evidence that the acts of the ac- cused done after the commission of the crime are evidence against him. Wade v. State, 71 Ind. 535, 542. Georgia. For the proper form of the indictment and mode of trial of an ac- cessory after the fact, in larceny, whose offense consists in receiving the stolen goods, under Georgia Code, see Jordan -v. State, 56 Ga. 92. ACCORD AND SATISFACTION. By W. L. CRAWFORD. I. WHAT is PLEA OF ACCOBD AND SATISFACTION, 73. II. MAY BE PLEADED IN ALL ACTIONS, 73- III. MATTEE MUST BE PLEADED, 74- IV. AT WHAT TIME TO BE PLEADED, 75- V. FOEM OF THE PLEA, 76. VI. NECESSAEY ALLEGATIONS, 77. VII. INSUFFICIENT ALLEGATIONS, 80. VIII. MISCELLANEOUS, 81. 1. Nul Tiel Record, 81. 2. Tender, 82. 3. Pro Tanto, 82. 4. Question for Jury, 82. 5. Estoppel, 82. 6. Admission, 82. 7. Chancery, 82. 8. Affirming Accord, 82. I. WHAT is PLEA OF ACCOED AND SATISFACTION. The plea of accord and satisfaction is the technical pleading which sets up that the defendant has extinguished the demand of plaintiff by an accord and satisfaction. 1 II. MAY BE PLEADED IN ALL ACTIONS. Accord and satisfaction generally is a good plea in all actions where damages only are to be recovered. 2 1. Chitty on Pleadings, vol. 3, p. 924. He may, however, agree to do so; Distinguished from Payment and Ee- and an agreement to accept something lease. The subject of accord and sat- in satisfaction, accompanied by the isfaction is often confounded with the delivery or performance of what is so kindred subjects of "payment" and agreed upon, satisfies and discharges " release" ; but they are all perfectly his right of action. Such an arrange- segregated in law and should not be ment is called in technical language used interchangeably or as synonyms, an accord and satisfaction, and, when The following are definitions of accord completely executed, forms a good de- and satisfaction: "A right of action fence to an action." Leake's Digest for a breach of contract cannot be dis- of the Law of Contracts, 876, Ed. 1878. charged by any payment or perform- See also 3 Black. Comm. 15. ance, or tender of payment or per- 2. Bac. Abr. "Accord and Satisfac- formance, without the consent and tion "; Cooper v. Parker, 14 C. B. 118, acceptance of the promisee ; for the 78 E. C. L. 118 ; Waters v. Smith, 2 promisee, after breach, becomes en- B. & Ad. 889, 22 E. C. L. 205 : Wil- titled to the compensation or remedy kinson v. Byers, I Ad. & El. 106, 28 provided by process of law, and is not E. C. L. 48. bound to accept any tender or offer Chitty gives forms of the plea in made in satisfaction of his legal rights, actions of assumpsit, covenant, case, 73 Matter must be ACCORD AND SATISFACTION. Pleaded. III. MATTER MUST BE PLEADED. At common law, accord and satisfaction might have been given in evidence under the plea of non-assumpsit ;* but by Hilary Rules (4 Will. 4) the matter had to be pleaded specially. 2 Under the Codes. The American code practice requires that all matter of accord and satisfaction shall be pleaded. 3 rent charge in fee to the defendant in satisfaction of his title, and so he made a composition ; the defendant protestando that Earle non concessit, pro placito dicit that he did not accept it in satisfaction, and it was adjudged a good plea." Per Curiam in Young v. Rudd, 5 Mod. 86. The best and safest way, says Lord Coke, to plead an accord is to plead it by way of satisfaction and not by way of accord ; for if it be pleaded by way of accord, a precise execution thereof in every part must be pleaded ; and if there be a failure in any part, the plea is insufficient ; but if it is pleaded by way of satisfaction, the defendant need plea no more but that he paid the plaintiff IO.T. (or whatever it be) in full satisfaction for the action, which sum he received. 4 Min. Inst. 146, citing Peytoe's Case, 9 Co. 80 b. It is customary, however, and it is believed safer to allege (i) the accord or agreement ; (2) the satisfaction per- formed in pursuance of the accord ; (3) the acceptance of the satisfaction as such. 4 Min. Inst. 146, citing Sib- ree v. Tripp, 15 M. & W. 23 ; Curle- wis v. Clark, 3 Exch. 375 ; Boosy v. Wood, 3 H. & C. 484. 2. See R. G. T. T. 1853, r. 8. Sham Plea. Accord and satisfaction could not at common law be pleaded as a sham plea. Richley v. Proone, 1 B. & C. 286, 8 E. C. L. 123. 3. Taylor v. Frink, 2 Iowa 84 ; Coles v. Soulsby, 21 Cal. 47 ; Sweet v. Bur- dett, 40 Cal. 97 ; Glazer v. Cliff, 10 Cal. 303 ; Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692 ; Fitch v. Brockmon, 2 Cal. 578. Contra, Gavin v. Annan, 2 Cal. 494. Compare Wallace v. Chand- ler, 16 Ark. 651 ; Jackson v. Olmstead, 87 Ind. 92 ; Frick v. Algeier, 87 Ind. 255- See Pomeroy's Code Remedies, 3d Ed. 665, where the author is of the opinion that if "payment" may be shown under a general denial, accord and satisfaction should be allowed to be shown. Plaintiff's Evidence Supplying Place of Plea. When, in an action brought and trespass. Chitty on Pleadings, vol. 3, pp. 924, 1002, 1031, 1062. 1. First Nat. Bank v. Kimberlands, 16 W. Va. 555 ; Paramore v. Johnson, i Ld. Raym. 566 ; Martin v. Thornton, 4 Esp. 181 ; Burge v. Dishman, 5 Blackf. (Ind.) 272. See Page v. Pren- tice, 7 Blackf. (Ind.) 322, where it was held optional to either plead specially or give in evidence under general issue. But in Longstreet v. Ketcham, i N. J. L. 170, it was held that accord must be pleaded ; and in Kenyon v. Suth- erland, 8 111. 99, it was held that ac- cord and satisfaction must be specially pleaded in an action of trespass. Need for Special Plea. "Anciently matters in discharge which admitted that once there was cause of action must uniformly have been pleaded specially ; afterwards a distinction was made between express and implied assumpsits ; in the former these mat- ters were required to be pleaded, but hot in the latter ; at length, however, they were allowed to be given in evi- dence under the general issue. ... So also payment, accord and satisfaction, etc., . . . might have been given in evi- dence under the plea of non-assump- sit, although there were also a special plea, in which the ground of defence might not have been correctly stated." Chitty on Pleading, vol. I, 478. Directions for Pleading. "Where a thing is pleaded by way of concord it is issuable ; but if the concord be not executed by giving and receiving, it cannot be pleaded in bar to the action. Therefore the best way of pleading it is by setting forth that the thing was given and received in the full satisfac- tion, etc., according to the resolution in Pinnell's Case. But both are tra- versable, as, for instance : The condi- tion of a bond was that if the defend- ant compounded with one Earle for his lands, then he should pay the plaintiff thirty pounds ; in an action of debt brought on this bond the de- fendant pleaded that he had not made any composition with Earle, etc. ; the plaintiff replied that Earle did grant a 74 At what time ACCORD AND SATISFACTION. to be Pleadad. IV. AT WHAT TIME TO BE PLEADED. Puis Darrein Continuance. Usually the plea of accord and satisfaction is pleaded in answer to plaintiff's declaration or petition. But an accord and satisfac- tion arising after the last pleading, which goes simply in discharge of the original cause of action, must generally be availed of by plea/#Z5 darrein continuance* When pleaded puts darrein con- tinuance it is a plea in bar to plaintiff's declaration'- 4 and need not be accompanied by an affidavit of its truth, 3 and waives all previous defences. 4 May be shown in Appellate Court. Matter of accord and satisfaction happening after trial may be shown in the appellate court, and the appellate court has a right to hear and consider evidence of upon a claim, the plaintiff, as part of his case, proves the payment and the circumstances under which it was made, the defendant may rely upon the facts as constituting an accord and satisfaction, though not pleaded as such in the answer. Looby v. West Troy, 24 Hun (N. Y.) 78. Agreement of Composition. Where, to an action upon a promissory note, an agreement of composition between the debtor and his creditors, includ- ing the plaintiff, is relied upon as a defence, such agreement must be spe- cially pleaded, and cannot be con- sidered under a plea of accord and satisfaction by the giving of new notes. Smith v. Owens, 21 Cal. n. Fact treated as in Issue. Where the record discloses that the fact of accord and satisfaction, though not presented by the pleadings, is treated as in issue, and evidence introduced touching it, without objection, and it is submitted to the jury, this court will treat the objection to the pleadings as having been waived, and will examine the de- fence as though it had been specially pleaded. Berdell v. Bissell, 6 Colo. 162. Instruction to Jury. Where the only issue made by the pleadings is as to the fact of a warranty as to the dis- position of certain horses sold by the defendant to the plaintiff, and there is no plea or proof of accord and satis- faction or payment, there is no foun- dation for an instruction as to the verdict which the jury should render, if they should find that there had been a settlement between the parties, and it is error to give such instruction. Gibbs v. Wall, 10 Colo. 153 ; see also American v. Rimpert, 75 111. 228 ; Bruce v. Bruce, 4 Dana (Ky.) 530. Not Interfering with Assignment. Where the plaintiffs held defendant's accommodation note, and agreed with him that if he would not interfere with an assignment made by the payee they would release him, it was held that, although a good defence, it should have been pleaded. Wimpf- heimer v. Ludwig (City Ct.), i N. Y. Supp. 432. Matter held an Accord and Satisfac- tion. An agreement entered into after defendant had commenced a prosecu- tion against plaintiff for an assault and battery, but before the return of the warrant, to the effect "that the parties would mutually drop the mat- ter and be friends, and never do or say anything more in relation thereto, and that defendant would abandon the prosecution and plaintiff would pay costs," and its performance by defend- ant, is an accord and satisfaction which must be specially pleaded, and cannot be given in evidence under the gen- eral issue. Phillips v. Kelly, 29 Ala. 628. 1. Washington v. Louisville, etc., R. Co., 136 111. 49; Good v. Davis, Hempst. (U. S.) 16. 2. Robertson v. Burkell, 3 111. 278. 3. Ibidem. Motion to Dismiss Appeal. Where, after a judgment in a justice's court and previous to an appeal, the suit between the parties is settled, and the defendant notwithstanding prosecutes an appeal, the plaintiff cannot allege the accord and satisfaction by way of plea/zV darrein continuance; his proper course is to apply to the C. P. by mo- tion to dismiss the appeal. Schenck v. Lincoln, 17 Wend. (N. Y.) 506. 4. Good v. Davis, Hempst. (U. S.) 16. 75 Form of the ACCORD AND SATISFACTION. Flea. an accord and satisfaction outside of the record transmitted from the trial court. 1 Eight may be Curtailed. The plea of accord and satisfaction being a strictly legal defence, the court may require it to be made within the time limited by law. 3 V. FORM OF THE PLEA. At common law the pleading, like all other pleadings, was a certain set one and followed approved prece- dent. 3 Under the Codes. But under the codes of procedure in America, and the new procedure in England, the form of the pleading amounts to little, provided the plea embodies the substance of a good accord and satisfaction. 4 Verification. Where an answer sets up an accord and satisfac- tion between the maker and the payee of a note, as a defence to an action by the indorsee, the Colorado statute requires the same to be verified or else the genuineness of the note is ad- mitted. 5 1. Atlantic, etc., R. Co. v. Blanton, 80 at, etc., aforesaid, he the said defend- Ga. 562; Salmon v. Pixlee, 2 Day (Conn.) 242, citing Cheong May v. U. S., 113 U. S. 216; Dakota County v. Glidden, 113 U. S. 222; San Mateo County v. Southern Pac. R. Co., 116 U. S. 138. See also Hartell v. Searcy, 32 Ga. 190; Kirtland v. Macon, 62 Ga. 747; Howard v. Durand, 36 Ga. 346, QI Am. Dec. 767. Alluding to Accord and Satisfaction in Testimony. Where the plaintiff in his testimony alluded to a written agree- ment with a railroad for a settlement with him for the right of way, which agreement was not pleaded as a de- fence nor produced at the trial, the appellate court held that it was not before the court for the purpose of basing upon it a defence of accord and satisfaction. Combs v. Smith, 78 Mo. 32. 2. Tilton v. Morgaridge, 12 Ohio St. 98, where the court refused to permit one of several defendants to set up by answer that since the com- mencement of the suit, and prior to the last two continuances, one of his codefendants had made an accord and satisfaction with the plain- tiff. 3. Common law Form. The following was an approved form: "Because he says, that after the making of the said several promises and undertakings in the said declaration mentioned, and before the exhibiting of the bill of the said plaintiff against him the said de- fendant in this behalf, to wit, on, etc., ant delivered to the said plaintiff one pipe of wine, of great value, to wit, of the value of ^100, in full satisfaction and discharge of the said several prom- ises and undertakings, and of all the said sums of money in the said decla- ration mentioned, and which said pipe of wine he the said plaintiff then and there accepted and received of and from the said defendant in full satis- faction and discharge of the said sev- eral promises and undertakings, and of all the sums of money in the said declaration mentioned." Chitty on Pleadings, vol. 3, p. 925. 4. Code Form. The defendant an- the complaint : I. That on the day of 18 , at he delivered to the plaintiff the promis- sory note of A. B. for dollars. II. That the plaintiff accepted the same in full satisfaction of the claim set up in the complaint. New York Code, vol. 6 (Book of Forms). Form now used in England. ' ' That he satisfied and discharged the plaintiff's claim by doing work and providing materials for the same for the plain- tiff, and by delivering goods to the plaintiff, which work and materials and goods were so done and provided and delivered by the defendant, and were accepted by the plaintiff re- spectively in satisfaction and dis- charge of the said claim." Bullen & Leake's Precedents, 414. 5. Parkison v. Boddiker, 10 Colo. 503- 76 Necessary ACCORD AND SATISFACTION. Allegations. VI. NECESSARY ALLEGATIONS OF ACCORD AND SATISFACTION. Allegation of Value. The money value of the thing given as an accord need not be stated. 1 Allegation of Time. The allegation of time is not a material one. 2 Allegation of Acceptance. The allegation that the plaintiff accepted and received the matter in full satisfaction is a material one and its omission fatal. 3 1. Chitty on Pleadings, vol. 3, p. 926, note ; see form in Stephen on Pleading, 235, where the allegation of value is omitted. But the plea must show that the matter accepted was of some value. Davis v. Noaks, 3 J. J. Marsh. (Ky.) 497. See Bank of Com. v. Lethcher, 3 J. J. Marsh. (Ky.) 196. Amount Stated under Videlicet. Where a note is given as an accord and satisfaction, its amount may be stated under a videlicet ; nor need the date of the note be set out. Dunham v. Ridgel, 2 Stew. & P. (Ala.) 402. Money Paid in Goods, etc. To a com- plaint by an executor upon a due bill, the defendant answered that he had paid the deceased the full amount of the principal and interest due, "and the sum of money was paid in goods, wares, and merchandise, and was paid in full satisfaction of said note, and was so received by deceased in his lifetime." It was held that this was substantially a good plea of accord and satisfaction. Hart v. Crawford, 41 Ind. 197. Equity of Redemption. To an action on the bond, against mortgageor, plea that plaintiff had become possessed of the equity of redemption by purchase must aver that the value of the prem- ises was equal to the amount due on the bond. Spencer v. Harford, 4 Wend. (N. Y.) 381. 2. Immaterial Variance. Upon a plea of accord and satisfaction by payment and acceptance of a sum less than the debt, testimony to a payment of such sum at a date subsequent to the date of the accord is an immaterial vari- ance. Sonnenberg v. Riedel, 16 Minn. S3- What Sufficient Allegation. An aver- ment that, prior to the suing out of the writ, the debt was discharged, is sufficient as to time. Bird v. Caritat, 2 Johns. (N. Y.) 342, 3 Am. Dec. 433. Time of Delivery of Property. If a plea of accord and satisfaction, by the delivery to plaintiff of certain prop- erty, does not state a time when the de- livery was made, it is bad on special demurrer. Pence v. Smock, 2 Blackf. (Ind.) 315. Ambiguous Plea. To a count by A against B for goods sold and delivered, B pleaded, as to4/. parcel, etc., that on a certain day, at the request of A, he delivered to C, for Ascertain goods; that it was "then," to wit, on the day and year aforesaid, in consideration thereof, agreed between A and B that A should accept such delivery to C in full satisfaction and discharge of the premises as to the 4!., etc., and that A did " then " accept such delivery in full satisfaction and discharge. It was ruled on special demurrer for ambigu- ity, that the plea was bad, inasmuch as it might mean either that the agree- ment to accept the delivery of the goods to C in satisfaction took place at the same time as the delivery or at a subsequent period. Stead v. Poyer, i C. B. 782, 50 E. C. L. 782. 3. Drake v. Mitchell, 3 East 256; Paine v. Masters, i Stra. 573; Young v. Jones, 64 Me. 563, 18 Am. Rep. 279; Johnson v. Hunt, 81 Ky. 321; Shaw v. Burton, 5 Mo. 478; State Bank v. Littlejohn, i Dev. & B. (N. Car.) 563; Hearn v. Kiehl, 38 Pa. St. 147; Mor- ris Canal, etc., Co. v. Van Vorst, 21 N. J. L. 100. Lacking Averment of Satisfaction. To a declaration on a contract for the delivery of 600 loads of timber at Dantzic, the defendant pleaded that after the accruing of the causes of ac- tion and before suit it was agreed be- tween the plaintiffs and defendants that the defendants should deliver to the plaintiffs in London certain other timber, and that such other timber should be accepted and received by the plaintiffs in full satisfaction and discharge of all causes of action upon the contract in the declaration mentioned; that the defendant in part performance of the agreement delivered to the plaintiffs, and they accepted and received of him, 143 77 Necessary ACCORD AND SATISFACTION. Allegations. Allegation of Mistake. The allegation of a mistake in a contract may be necessary at times to show a consideration for the accord. 1 ment pleaded had been accepted by the parties in accord and satisfaction of the causes of action alleged in the declaration. Held, on demurrer, re- versing the judgment of the court be- low, that such plea was bad. It could not be assumed that an agreement, the defendant's version of which was set out in the plea, had been accepted in accord and satisfaction. Barclay v. Bank of New South Wales, 5 App. Cas. 374. Allegation of Satisfaction. To an ac- tion by assignees of a bankrupt assur- ance association the defendant pleaded that before the bankruptcy it was agreed between the association and the defendant that policies which had been effected by the defendant with the association, and which were exist- ing, should be forthwith cancelled and delivered up to the association, which should thereupon be exonerated and discharged from the insurances, and that the premiums thereupon paid or payable by the defendant, or a rata- ble proportion thereof, after deducting so much as would be fairly payable in respect of risks already incurred, should be allowed in account to the defendant, and set off against the moneys due from the defendant to the association, and that the defendant thereupon should be acquitted, exon- erated, and discharged from the pay- ment of so much of the moneys as the premiums so to be allowed should amount to. The plea stated that the amount of premium so to be allowed was a certain sum, and averred that, in pursuance of the agreement, the defendant delivered up the policies and that they were cancelled, and that the defendant was in consequence thereof exonerated and discharged from the payment of that sum. Held, that, the plea was bad in substance ; for that, the agreement being to de- liver up the policies to be cancelled and to allow the premiums, the plea ought to have alleged that such allow- ance was made. Graham v. Gibson, 4 Exch. 768. 1. Mistake in Contract. In an action to recover a balance on a contract to deliver beef, defendant pleaded that the agreement, as understood by both parties, was $3.50 per hundred for steers, with 20 per cent deduction for loads on the terms aforesaid, in full satisfaction and discharge of the causes of action in the declaration mentioned, so far as they related to 143 loads of timber in the contract men- tioned, and that the defendant within a reasonable time tendered to the plaintiffs the residue of the timber to complete the contract. It was held on demurrer, that this was not good as a plea of accord and satisfaction for want of an averment of satisfaction. Gabriel v. Dresser, 15 C. B. 622, 80 E. C. L. 620. After Writ Sued Ont. And where the accord and satisfaction takes place af- ter the writ is sued out, the plea should allege that the plaintiff accepted the thing in satisfaction of the costs and damages sustained by the non- per- formance of the promises. Francis v. Crywell, i D. & R. 546. Good after Verdict. A plea of accord and satisfaction which fails to state that the matter relied on as an accord was accepted as a satisfaction by the creditor suing is bad on demurrer, but good after a verdict sustaining it. Wilkerson v. Bruce, 37 Mo. App. 156. Acceptance from Stranger. In an ac- tion of covenant plea of acceptance of satisfaction from a stranger is bad. Clow -v. Borst, 6 Johns. (N. Y.) 37; Daniels v. Hallenback, IQ Wend. (N. Y.) 408; Bleakley v. White, 4 Paige (N. Y.)6 5 4- Agency. Where the plea was that on statement of account defendant de- livered notes to C. for plaintiff without averring that C. was plaintiff's agent, nor that the notes were received in satisfaction, is bad. Bird v. Caritat, 2 Johns. (N. Y.) 342, 3 Am. Dec. 433. Acceptance of Draft. A plea of ac- cord and satisfaction alleging delivery and receipt of a draft is bad unless the draft was paid or there was an express agreement extinguishing the debt. May v. Gamble, 14 Fla. 467. No Presumption of Acceptance. To a declaration alleging a breach of an agreement therein set forth, and con- sequent damage to the plaintiffs, it was pleaded that a certain agreement had been come to between the plain- tiffs and defendants after dispute had arisen. The plea did not in terms ad- mit or deny the alleged breach, nor did it in terms state that the agree- Necessary ACCORD AND SATISFACTION. Allegations. Release of an Equity of Redemption. Where the subject-matter of the plea is the release of an equity of redemption the plea will receive a liberal construction and be upheld if possible. 1 Courts Liberal in Construction. The courts are liberal in their con- struction of the plea of accord and satisfaction, and will often hold a plea good although informal.* Replication. An equitable replication may be pleaded to a plea of accord and satisfaction. VVhere the accord and satisfaction are received by the creditor on the faith of representations which are false, this may be set up in reply to the plea. 3 all cows delivered, which latter clause was accidentally omitted from the contract, and that plaintiff had ac- cepted a settlement on that basis in full satisfaction of all claims there- under. On plaintiff's motion to strike out, held, treating the plea as one of accord and satisfaction, the allegation of mistake was necessary, as showing a consideration for the settlement, and it constituted a legal defence. Torrey v. U. S., 42 Fed. Rep. 207. 1. In an action of debt upon a writing obligatory, a plea that the defendant was the owner of the equity of redemption in certain property pur- chased by the plaintiff at a sale made by a sheriff under execution, and that before the time for redemption expired the plaintiff, in consideration that de- fendant would waive and release to plaintiff his right of redemption, agreed to release and discharge defendant from the payment of the obligation, and that in pursuance of such agree- ment the defendant did waive, release, and quitclaim his said right of re- demption to the plaintiff, is substan- tially a good plea of accord and satis- faction. Bailey v. Cowles, 86 111. 333. Release and Quitclaim. Where a release and quitclaim of an equity of redemption in real estate is pleaded as an accord and satisfaction, it is not necessary that the plea should allege that such release and quitclaim were under seal. Bailey v. Cowles, 86 111. 333- 2. Assigning Effects. A plea that de- fendant agreed with plaintiff and oth- ers to assign effects to them in full satisfaction of their claims, and that in pursuance thereof the assignment was made by defendant, states a good accord and satisfaction. Watkinson v. Inglesby, 5 Johns. (N. Y.) 386. To Promissory Note. A plea in a suit showing that before the assignment of a note the payee was indebted to each of the defendants in certain sums of money, and that the payee and another person were indebted in a certain other sum to the defendants, which debts amounted to dollars, and stating that such indebtedness was made so many payments on the note, described in the declaration, and was received and accepted by the payee as a payment on the note, be- fore its assignment, although infor- mal, is good. Woods v. Harris, 5 Blackf. (Ind.) 585. Executing New Bond to New Partner- ship. Where the obligees of a bond are partners, and a new partner is taken into the firm, a plea of accord and satisfaction is good which recites that the obligor executed a new bond to the new partnership which was ac- cepted in satisfaction of the first bond. Pope v. Tunstall, 2 Ark. 209. Allegation of Agency. Where the plea alleges that the defendant's note was given to a third person for the plaintiff, it must be averred that he was the agent of the plaintiff. Bird v. Caritat, 2 Johns. (N. Y.) 342, 3 Am. Dec. 433. Affidavit of Defence. An affidavit of defence setting up an accord and satis- faction under a written agreement must be specific and contain the ma- terial provisions of the agreement. Simon v. Kendig, 4 Kulp. (Pa.) 493. 3. Stears v. South Essex Gas Light, etc., Co., 9 C. B. N. S. 180. 99 E. C. L. 179, where a plea of accord and satisfac- tion set up the delivery of deeds and se- curities as accord and satisfaction, an equitable replication as to to the deeds and securities, that they were accepted on the faith of representations which were false, was allowed. See Perry v. Attwood, 6 El. & Bl. 691; Turner v. Browne, 4 D. & L. 201; Jones v. Saw- kins, 5 C. B. 142, 57 E. C. L. 141. 79 Ir sufficient ACCORD AND SATISFACTION. Allegations The reply may set up the facts which nullify the plea, although such facts are admissible under a general denial. 1 VII. INSUFFICIENT ALLEGATIONS OF ACCORD AND SATISFACTION. Eeceived on Account. Although a less sum may, under certain circumstances, be an accord and satisfaction of a greater sum due, it must not only be paid as such, but the plea must aver that it was received as such. An omission to state the latter allegation gives rise to the presumption that the amount received was re- ceived on account/- 4 To Whom Satisfaction was Made. A plea of accord and satisfaction must show to whom satisfaction was made. 3 "Satisfied and Discharged." The allegation that the claim of plain- tiff has been " satisfied and discharged " is not the statement of an accord and satisfaction. 4 statement of Legal Conclusion. Under the codes an accord and satisfaction cannot be pleaded as a mere legal conclusion. The facts must be set out warranting the conclusion. 5 A replication which traverses the allegations of agreement to accept in a plea of accord and satisfaction need not notice the allegations of payment or acceptance. Bainbridge z>. Lax, 9 Q. B. 819, 58 E. C. L. 818. 1. Pottlitzer v. Wesson (Ind. App. !893) 35 N. E. Rep. 1030, where the answer alleged that a certain sum was received in settlement, and the reply set out that the sum was only received pro tanto and not in extinguishment of the whole claim. It was held that this reply was not demurrable, al- though a general denial would have sufficed. Denying Conveyance of Land, etc. Where to an action on a note the de- fendant pleaded an accord and satisfac- tion by the sale and conveyance of a tract of land which plaintiff accepted and received in discharge and satis- faction of the note, to which plea the plaintiff replied, denying both the conveyance of the land to him and his acceptance of it, it was held on de- murrer to the replication that it was a good answer to the plea, and was neither double, uncertain, nor objec- tionable. Dent v. Coleman, 10 Smed. & M. (Miss.) 83. 2. Insurance Co. v. Insurance Co., I Clev. Rep. (Ohio) 81, where an aver- ment in defence to an action on a re- insurance policy, that the original in- surer had compromised the claim of the insured at 60 cents on the dollar, and thereupon the reinsurer had paid to the insurer a specified sum, in full satisfaction and discharge of all claims, was held demurrable. 3. Nill -v. Comparet, 15 Ind. 243. 4. Action on Notes. An answer in an action on notes which denies that cer- tain of the first four notes have not been paid, and alleges that they have been " satisfied and discharged," does not plead an accord and satisfaction. Hogan v. Burns (Cal. 1893) 33 Pac. Rep. 631. 5. Where an action was brought by a husband and wife against under- takers to recover damages for not properly keeping a body in a vault as they had agreed, the answer alleged, in substance, that the plaintiffs had failed to pay the agreed compensation ; that the defendants, by mistake, had ship- ped the body to some point of inter- ment not remembered by them at the time the body was demanded by the plaintiffs ; that they so notified the plaintiffs, and promised them to im- mediately find the place of interment and without delay return the body ; that the plaintiffs expressed them- selves as satisfied with this arrange- ment ; that shortly afterwards said body was returned to the defendants, and was taken by the plaintiffs and in- terred ; that the return of the corpse was taken and received by the plain- tiffs in full and perfect satisfaction of all wrongs and injuries incident to the mistake made by the defendants. Held, that the last averment of the answer was the statement of a mer~ conclusion, not warranted by ar.y 80 Insufficient ACCORD AND SATISFACTION. Allegations. Several Counts in the Declaration. The plea must answer all the counts in the declaration, otherwise it is demurrable. 1 All Elements to be Embodied. While the courts are liberal in their construction of pleas of accord and satisfaction, still they insist that all the necessary legal elements requisite to this defence should be embodied in the plea. A failure in this respect makes the plea a nullity. 2 VIII. MISCELLANEOUS. 1. Nul Tiel Record. Accord and satis- faction may be pleaded with mil tiel record to debt on judg- ment. 3 premises preceding it. Held also, that the answer was bad, inasmuch as it was the duty of the defendants to procure a return of the corpse, and there is no averment that the plaintiffs agreed with the defendants that they would accept such return in satisfac- tion of the cause of action upon which the complaint is based. Renihan v. Wright, 125 Ind. 536. 1. Hopkinson v. Tahourdin, 2 Chit. Rep. 303, 18 E. C. L. 343, where the plea professed to answer the whole declaration, which contained several counts, and stated that the goods were delivered and accepted in satisfaction " of the cause of action." It was held demurrable. 2. Neither Accord nor Satisfaction. A plea to an indebitatus count which states that plaintiff was to pay himself out of some of defendant's moneys which he was to receive, and through his own default he received nothing, is bad as being neither an accord nor a satisfaction. Gifford v. Whittaker, 6 Q. B. 249, 51 E. C. L. 247 ; Griffiths v. Owen, 13 M. & W. 58. Account Stated A plea of account stated, though it avers a balance and plaintiff's promise to pay, is bad on general demurrer. It is a mere ac- cord. Bump v. Phoenix, 6 Hill (N. Y.) 308. Execution Levied. To debt on a judg- ment, defendant pleaded that it was confessed on a stipulation that it should be levied only on particular goods, and that the goods were levied upon and sold, and yielded an amount more than sufficient to pay the debt. Held, a plea not of accord and satis- faction, but that the debt had been levied, and so the amount of the levy was not issuable. Welch v. Lynch, 7 Barb. (N. Y.) 380. Held no Accord and Satisfaction. A., H., and S. jointly commit a trespass on i Encyc. PI. & Pr. 6 lands forming the homestead of the former owner, at that time held by the widow by virtue of her dower and quarantine rights, and oust the widow, who brings an action for such tres pass. Subsequently she files a bill in chancery against H. and A. for dower and quarantine in said lands, and in such suit recovers judgment against them for about four thousand dollars. In consideration of three thousand dollars, the widow releases H. from all liability for the trespass, reserv- ing in said release the right to enforce the balance of the decree against A., who pays it. These facts were held to constitute no bar to her action for the trespass and ouster against S., and a plea setting up these facts is demurra- ble. Smith v. Gayle, 62 Ala. 446. Plea Construed. In an action on a sealed contract by which plaintiffs rented to defendants a number of ewes at a certain rent, the ewes to be returned at the termination of the lease, or $1.25 a head to be paid for all not returned by reason of "acci- dent," and $1.50 for those disposed of "in any other manner," a plea of ac- cord and satisfaction is bad that sets up that defendants entered into a new contract with plaintiffs, whereby one of defendants agreed to hold the bal- ance of the ewes, after having rede- livered a part, and to pay therefor 20 cents per head annual rent, instead of 25 cents as stipulated by the original contract, and that the new contract was executed by that defendant's con- tinuing to hold the sheep thereunder, and that it was agreed that this new contract should be a full and complete satisfaction of the original contract. Armijo v. Abeytia (N. Mex. 1891), 25 Pac. Rep. 777. 3. Kershaw v. Robinson, i Brev. (S. Car.) 380. Are Inconsistent. Where a proceed- 81 Miscellaneous. ACCORD AND SATISFACTION. Miscellaneous. 2. Tender. Where a sum of money is the subject-matter of the accord and satisfaction, or where the property tendered is capa- ble of production in court, it must accompany the plea. 1 3. Pro Tanto. The part execution of an accord and satisfaction may be pleaded as satisfaction pro tanto* 4. Question for Jury. Where an accord and satisfaction is pleaded the subject-matter of which is that matters in dispute have been submitted to arbitration and passed on, the question is one for the jury. 3 5. Estoppel. A plea of accord and satisfaction needs only be sup- ported by the same amount of evidence as any other plea. It is error to apply to such a plea the doctrine of estoppel. 4 6. Admission. The plea of accord admits the allegations of the declaration ; and where bonds are sued on, they may be intro- duced in evidence although they vary from the description of them in the declaration. 5 7. Chancery. Chancery will not assist one where he has had an opportunity to plead the accord at law. 6 8. Affirming an Accord. The filing a supplemental plea of accord and satisfaction, made in settlement of the action, is a ratification of the accord. 7 ing by scire facias was brought to re- vive a judgment and the defendant pleaded nul tiel record, statute of lim- itations, and accord and satisfaction, it was held that although the defences of mil tiel record and accord and satis- faction were inconsistent, yet they were not obnoxious to demurrer, and a defendant does not waive his objec- tion to the sustaining a demurrer to his plea of accord and satisfaction by going to trial on the plea of nul tiel record. Tucker v. Edwards, 7 Colo. 209. 1. Guion v. Doherty, 43 Miss. 538. But probably this case is one on " ten- der" only, for an accord is no defence unless the plaintiff has accepted it. 2. Where there is no plea that a promise by a wrong-doer was made and accepted in satisfaction of the tort, any charge of the court as to rescission for non-performance of the promise is ir- relevant, the tort being the subject- matter of the action. A mere accord, though partly performed or executed, does not extinguish the original right; the part execution may be pleaded as satisfaction pro tanto. A promise of future performance will amount to sat- isfaction if expressly accepted as such, but generally not otherwise. For such a promise to be available in bar, it must be pleaded, and its acceptance averred. Brunswick, etc., R. Co. v. Clem, 80 Ga. 534. 3. Madden -v. Blain, 66 Ga. 49. 4. Cheeves v. Danielly, 74 Ga. 712. 5. Dickinson v. Burr, 7 Ark. 34. General Issue. The sheriff, to satisfy an execution against the defendant, wrongfully levied on property belong- ing to a third person. The sheriff delivered the property to warehouse- keepers to keep; the third person then brought suit in trespass against such warehousemen. The warehousemen pleaded not guilty, and also accord and satisfaction. It was held that the plea of accord and satisfaction was not an admission of the cause of action when the general issue was pleaded. Prince v. Puckett, 12 Ala. 832. 6. Burton v. Hynson, 14 Ark. 32; Stark v. Thompson, 3 T. B. Mon. (Ky.) 302. 7. Whitlock v. Coulter, I City Ct. Rep. (N. Y.)428. 82 ACCOUNTS AND ACCOUNTING. By W. L. CRAWFORD. I. COMMON -LAW ACTION OF ACCOUNT, 84. 1 . Generally Fallen into Disuse, 84. 2. When it Lies, 84. 3. The Declaration, 85. 4. The Plea, 86. 5. Judgment Quod Computet, 86. 6. Proceedings before the Auditors. See REFERENCES, 87. 7. Final Judgment, 87. II. ACCOUNT STATED, 87. 1. Generally, 87. 2. Must be Declared on as Such, 88. 3. The Complaint or Declaration, 88. 4. The Answer or Plea, 89. III. ACTIONS ON ACCOUNTS, 90. 1. Particularity, 90. 2. Statutory Provisions, 90. 3. Pleading by Copy, 90. 4. Probated Accounts, 91. IV. ACCOUNTING IN EQUITY, 93. 1. Equity Jurisdiction in Cases of Accounts, 93. a. ff7/a/ ^/?^/ be Alleged, 93. ^. Basis and Extent of Jurisdiction, 93. r /. Tur- ner (Supreme Ct.), 8 N. Y. St. Rep. 500; McRaven v. Dameron, 82 Cal. 57; More v. Calkins, 85 Cal. 177 ; Casserly v. Witherbee, 28 N. Y. Wkly. Dig. 388 ; Noyes v. Wernberg, 15 N. Y. Wkly. Dig. 72. And see Gutsch Brewing Co. v. Fischbeck, 41 111. App. 400, where it was held that the bill would not sustain a decree for an accounting. Proper Form of Complaint. A com- plaint which sets forth a partnership, a dissolution, the existence of unset- tled accounts, and a balance in favor of plaintiff, and demands an account- ing, shows facts enough to constitute a cause of action. Ludington v. Taft, 10 Barb. (N. Y.) 447. And for the proper form of complaint in an action for an accounting between two firms, partners in a joint adventure, see Da- vis v. Grove, 2 Robt. (N. Y.) 134, where the subject is considered. For a complicated bill for an account, see Bogardus v. Trinity Church, 4 Paige (N. Y.) 178. 3. Rogers v. Sims, 39 Mo. App. 678 ; McAndrew v. Walsh, 31 N. J. Eq. 331 ; Trotter v. Heckscher, 41 N. J. Eq. 302 ; Adams v. Gaubert, 69 111. 585 ; Mc- Loskey v. Gordon, 26 Miss. 260. Framed on Definite Theory. The bill must be framed on a definite theory. Upon a bill for an accounting by an agent, relief cannot be had as for a wilful default, the bill not being so drawn. Singer v. Steele, 24 111. App. 58. See Young v. Pearson, i Cal. 448. Judgment Must Accord with Com- plaint. The complaint must be so drawn as will justify the judgment ; there can be no judgment for a differ- ent cause of action than that set forth in the complaint. Arnold v. Angell, 62 N. Y. 508 ; Weeks v. Hoyt, 5 Hun (N. Y.) 347 ; Darling v. Brewster, 55 N. Y. 667. But the appellate court will not necessarily reverse a decree for an account, although the bill merely sets forth facts for which as- sumpsit is an adequate remedy. Fi- delity Title, etc., Co. v. Weitzel, 152 Pa. St. 498. Specification of Items. The mere fact that items are not specified does not preclude the allowance of them in the settlement of the account. Tillotson v. Tillotson, 34 Conn. 361. But prop- erty not charged in the bill as being in the respondent's hands cannot be charged against him. Gillett v. Hall, 13 Conn. 435. Certificate of Counsel. A bill for an account does not require the certifi- i Encyc. PI. & Pr. 7. 97 Accounting in A CCO UN TS AND A CCO UN TING. Equity. Ignorance and Fraud. But where the plaintiff is ignorant of the matters set forth in his complaint, especially if such ignorance is caused by the fraud of the defendant, or by his refusal to per- mit the plaintiff to examine books in his possession, the bill for an account need not contain such certainty and particularity of statement as would otherwise be necessary. 1 Necessary Allegations. A bill for an account must show by specific allegations that there was a fiduciary relation between the parties, or that the account is so complicated that it cannot conveniently be taken in an action at law. 2 Unnecessary Allegations. But no allegation beyond those which es- tablish the fiduciary relation or the complicated state of the ac- count is necessary. 3 Superfluous Averments. Superfluous averments in the bill do not vitiate. 4 c. ALLEGATION OF DEMAND. The allegation that the plain- tiff has demanded an .accounting from the defendant, and his re- fusal, is a material one, and must be inserted in the bill. 5 d. OFFER TO PAY BALANCE. A distinct offer in the bill to pay the balance which may be found due is not necessary. 6 cate of counsel. Bachman v. Ein- horn, 5 W. N. C. (Pa.) 250. 1. Towle v. Pierce, 12 Met. (Mass.) 329 ; 44 Am. Dec. 679 ; Crosby v. Watts, 41 N. Y. Super. Ct. 208. 2. Badger v. McNamara, 123 Mass. 117 ; Walkers. Brooks, 125 Mass. 241 ; Trapnall v. Hill, 31 Ark. 347. Must aver Indebtedness. The bill must aver an indebtedness to the plaintiff at the time of filing it. Vol- mer v. McCauley, 7 Phila. (Pa.) 382 ; Metz v. Farnham, 8 Phila. (Pa.) 267. Against Devisees. A bill for an ac- count, passing the executors, and seeking to obtain payment out of the property in the hands of the devisees in remainder, should show affirma- tively that the money never came to the executors' hands, and that it still remains a charge on the estate. Cla- son v. Lawrence, 3 Edw. Ch. (N. Y.) 48. But in an action by an adminis- trator appointed to administer upon the assets left unadministered on the death of the executor, against an ex- ecutor of such former executor, to re- cover the assets, it is not necessary that the complaint allege that the as- sets ever came into defendant's hands. Walton v. Walton, 2 Abb. Pr. N. S. (N. Y. Ct. App.) 428. 3. Green v. Brooks, 81 Cal. 328 ; West v. Brewster, i Duer (N. Y.)&47 ; Christy v. Libby, 2 Daly (N. Y.) 418, Fraud. The right of the beneficiary of a trust to enforce an accounting from the trustee does not rest upon fraud, and no such allegation is neces- sary. Green v. Brooks, 81 Cal. 328. 4. Kerr v. Blodgett, 16 Abb. Pr. (N. Y. Supreme Ct.) 137 ; State v. Chad- wick, 10 Oregon 423. See Walker v. Spencer, 45 N. Y. Super. Ct. 71, where it was held that the complaint was not to be regarded as setting up several causes of action merely because it al- leged different transactions. In Brown v. Balde, 3 Lans. (N. Y.) 283, it was held that the allegations made the ac- tion one on a bond instead of for an accounting, although -there were suf- ficient averments to sustain it as a bill for an accounting. See further Kerr v. Webb, 9 Rich. Eq. (S. Car.) 369 ; Muir -v. Leake, etc., Orphan House, 3 Barb. Ch. (N. Y.) 477. 5. Magauran v. Tiffany, 62 How. Pr. (N. Y. Supreme Ct.) 251 ; Perry v. Foster, 62 How. Pr. (N. Y. Supreme Ct.)228. Bill by Two. Where the bill is on behalf of two, an averment of demand by one only, and without stating authority from the other, is sufficient. Ellas -v. Lockwood, Clarke Ch. (N. Y.) 3"- 6. Craig v. Chandler, 6 Colo. 543 ; Barton v. May, 3 Sandf. Ch. (N. Y.) 450. Contra, Casserly v. Witherbee, 98 Accounting in ACCO UNTS AND ACCO UN TING. Equity. e. PRAYER. The prayer is an essential part of the complaint. Accounting should not be ordered unless prayed for. 1 3. The Answer. Almost all the rights of the defendant are set up before the referee or master, and an answer in an accounting case does not have the same scope as in other cases. As the taking an account will be decreed if there have been dealings between the parties calling for equitable interposition, all those questions which usually form the subject-matter of an answer are left to the master or referee. 2 Cross-Bill. A defendant is entitled to an account of what the plaintiff has received, without filing a cross-bill for that purpose. 3 Denial. A denial that there have been mutual accounts, or that the property for which an account is sought was ever received, is sufficient, without any further detailed statement. 4 28 N. Y. Wkly. Dig. 388; but this was a redemption case. Proper Form. In an action of redemp- tion the proper form of an offer to pay is, that on the payment of what, if any- thing, shall be found due, the mort- gagee may be decreed to deliver pos- session. Quin v. Brittain, Hoffm. Ch. (N. Y.) 353. An allegation of " due demand " is an implied allega- tion of an offer to account and pay. Hill v. Haskin, 51 Cal. 175. 1. Dominguez v. Dominguez, 7 Cal. 427. See Averill, etc., Co. v. Verner, 22 Ohio St. 372. Prayer for Discovery. A bill against a corporation for an accounting, and to recover money alleged to have been obtained through fraud, unaccom- panied by a prayer for discovery, is demurrable. Beggs v. Edison Elec- tric Light, etc., Co., 96 Ala. 295. But if in a bill for a discovery, with a prayer for an account, the case is not the proper subject of an action for an account, the fact that the plaintiff is entitled to a discovery will not neces- sarily entitle him to an account. Magic Ruffle Co. v. Elm City Co., 14 Blatchf. (U. S.)n 3 . Governs Decree. The accounting is wholly governed by the prayer. The decree will only be for such an ac- counting as is prayed for, and in that aspect only. Scott v. Gamble, 9 N. J. Eq. 218 ; Welch v. Arnett (N. J. Eq. 1890), 20 Atl. Rep. 48. For Dissolution of Partnership. Where an accounting of the general accounts of a partnership is sought, the bill must pray for a dissolution. Daniell Ch. PI. & Pr., vol. i, 334. General Belief. If the facts stated constitute a case in which the defend- ant should render an account, the court may compel an accounting under a prayer for general relief. Wood v. Brown, 34 N. Y. 337 ; Dyckman v. Valiente, 42 N. Y. 549 ; Haworth v. Taylor, 108 111. 275. Duplicity. The prayer is not looked to in determining whether there is more than one cause of action ; where a complaint demands an accounting of the partnership business both before and after the death of a partner, it is but one cause of action. Skidmore v. Collier, 8 Hun (N. Y.) 50. See also Walker v. Spencer, 45 N. Y. Super. Ct. 71 ; Darling v. Brewster, 55 N. Y. 667 ; Day v. Stone, 15 Abb. Pr. N. S. (N. Y. C. PI.) 137- 2. See article REFERENCES. 3. Scott v. Lalor, 18 N. J. Eq. 31. Cross items need not be pleaded to be availed of except when the whole account is set out in the answer. Goldthwait v. Day, 149 Mass. 185. But see Bailey v. Bergen, 4 Thomp. & C. (N. Y.) 642, where it is held that de- fendant's right to an accounting must be specially pleaded in order to avail as a ground of affirmative relief. 4. Perry v. Foster, 62 How. Pr. (N. Y. Supreme Ct.) 228. See Noyes v. Wernberg, 15 N. Y. Wkly. Dig. 72 ; Livingston v. Livingston, 3 Johns. Ch. (N. Y.) 51. Demurrer. A denial need not be in- terposed as a defense in the case of stale demands. A demurrer may be resorted to when the accounting is sought of such claims as are stale. Bell v. Hudson, 73 Cal. 285. 99 Accounting in A CCO UNTS AND A CCO UN TING. Equity. Setting out the Account. As to whether a defendant who denies by answer the complainant's right to an account is nevertheless re- quired to give the account called for, the decisions are conflicting. 1 The weight of authority is, probably, that where the account does not appear, by the allegations and charges of the bill, to be useful in establishing the complainant's right to it, but appears merely as that which must ultimately be rendered in fulfilment of an obliga- tion the enforcement of which is sought, the defendant need not set out the account in his answer, in case it is necessary to resort to an answer rather than to a plea or demurrer in resisting the com- plainant's alleged right to the account ; but if the alleged right may be resisted by plea or demurrer, and the defendant, instead of availing himself of either of those pleadings, chooses to answer, he must answer fully, setting out the account. 2 4. The Plea of Stated Account a. IN EQUITY. A plea of a stated account is a good bar to a bill for an account ; for there is no rule more strictly adhered to in courts of equity than that, when a de- 1. For an elaborate review of them see French v. Rainey, 2 Tenn. Ch. 640. The matter is discussed in the follow- ing cases : Law v. Hunter, i Russ. 100; Walker v. Woodward, i Russ. 107; Elmer v. Creasy, L. R. 9 Ch. 69; De la Rue v. Dickenson, 3 Kay & J. 388; Jer- rard v. Saunders, 2 Ves. Jr. 457 ; Stephens v. Stephens, 2 Sel. Cas. 51; Sweet v. Young, Ambl. 353; Donegal v. Stewart, 3 Ves. 446; Mazeredo v. Mait- land, 3 Madd. 72; Lancaster v. Evors, i Ph. 349; Gethin v. Gale, Ambl. 353; Shaw v. Cling, n Ves. 283; Clegg v. Edmonson, 22 Beav. 125 ; Hudson v. Trenton Locomotive, etc., Co., 16 N. J. Eq. 475; Shepherd v. Roberts, 3 Bro. C. C. 239 ; Swinborne v. Nelson, 16 Beav. 416; Great Luxembourg R. Co. v. Magnay, 23 Beav. 646; Hall v. Noyes, 3 Bro. C. C. 483 ; Adams v. Fisher, 3 Myl. & C. 526 ; Howe v. McKernan, 30 Beav. 547; Phelips v. Caney, 4 Ves. 107; Leonard v. Leonard, 2 B & B. 323; Reade v. Woodroofe, 24 Beav. 421; Rowe v. Teed, 15 Ves. 376; Randal v. Head, Hardr. 188 ; John v. Dacie, 13 Price, 632 ; Jacobs v. Goodman, 2 Cox 282 ; v. Harrison, 4 Madd. 252 ; Booth z>.Smeath,2 Strob.Eq.(S.Car.)3i. 2. Pace v. Bartles, 45 N. J. Eq. 371, a well-considered case in which the authorities are all reviewed. See Meeker v. Marsh, i N. J. Eq. 198; Pullman Palace Car Co. v. Central Transp. Co., 34 Fed. Rep. 357; Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205. To a bill in equity for an account of sales of a book alleged to have been published by the defendant on the joint account of the plaintiff and himself, an answer which denies that any such book was published during the time alleged, and asserts that the book published by the defend- ant was a different one, need not render an account of sales. Arm- strong v. Crocker, 10 Gray (Mass.) 269. Making admissions in the answer, suf- ficient for the purposes of the suit up to decree, is enough, without giving further accounts. Lockett v. Lockett, L. R. 4 Ch. 336. Motion. If the answer does not set out the account, the plaintiff is entitled on motion to have produced for inspec- tion documents in the possession of defendant. Robbins v. Davis, i Blatchf. (U. S.) 238. Manner of Setting out Account. Where defendants are required to set out accounts, they may for the pur- pose of rendering their schedules less burdensome, instead of going too much into particularity, refer to the original accounts in their possession ; and care must be taken to avoid any inconsistency between the body of the answer and the schedule. Daniell Ch. PL & Pr., vol. i, 725, 729; White v. Barker, 5 DeG. & S. 746 ; Major v. Arnott, 2 Jur. N. S. 387 ; Drake v. Symes, i Johns. 647; Telford v. Ruskin, ii Sim. 401 ; Bally v. Kendrick, 13. Price 291; Lockett v. Lockett, L. R. 4 Ch. 336. IOO Accounting in A CCO UNTS AND A CCO UN TING. Equity. fendant sets forth a stated account, he shall not be obliged to go upon a general one. 1 What May be Pleaded as a Stated Account. Besides the technical account stated other matters may be pleaded "as such. A general release of all demands, not under seal, may be pleaded as a stated account. 2 The delivery up of vouchers is an affirmation that the account be- tween the parties was a stated one ; and where such a transaction has taken place, it should be averred in the plea. 3 An award may amount to an account stated, 4 and so may an accounting and final settlement under a power. 5 Kequisitesof Plea. In order to support a plea of a stated account it must be shown to have been final. 6 The plea must show that it was in writing, and likewise that the balance was in writing, or at least must set forth what the balance is. 7 It is not necessary to aver that the account was settled between the parties upon a mi- nute investigation of items ; a general agreement will be sufficient. 8 The stated account must be alleged to be just and true, to the best of the defendant's knowledge and belief. 9 Must be Supported by Answer. An answer is necessary to support the plea where the bill anticipates the plea of an account stated, and alleges facts to avoid it ; and the answer as well as the plea must deny those allegations of the bill. 1 * Amending Bill. Where a complainant files a bill for a general account, and the defendant sets forth a stated one, the complain- ant must amend his bill. 11 By the amendment he must surcharge 1. Daniell Ch. PI. & Pr., vol. i, 666. Rep. 466; Greene v. Harris, g R. I. 2. Daniell Ch. PI. & Pr., vol. i, 667. 401. 3. Daniell Ch. PI. & Pr., vol. i, 667. 9. Driggs v. Garretson, 25 N. J. Eq. 4. Ives v. Ashelby, 26 111. App. 244; 178; Harrison v. Bradley, 5 Ired. Eq. Coultas v. Green, 43 111. 277. Where (N. Car.) 136; Daniell Ch. PI. & Pr., the parties to a bill for the settlement vol. I, 667. of partnership affairs submit the ac- 10. Harrison v. Farrington, 38 N. J. counting to arbitration, the award to Eq. 359. See Schwarz v. Wendell, be entered as the finding of the court, Harr. (Mich.) 395. The plea of an the complainant cannot dismiss where account stated cannot be sustained the court has overruled a motion to set unless it be supported by answer aside the award. Ives v. Ashelby, 26 denying the receipt of any part of the 111. App. 244. money for which the defendant is 5. Craig v. McKinney, 72 111. 305. called upon to account, subsequently 6. Daniell Ch. PI. & Pr. , vol. I, 666. to the time when the account stated 7. Daniell Ch. PI. & Pr., vol. I, 666. was adjusted. Danels v. Taggart, I But it need not be alleged that it was Gill & J. (Md.) 311 ; Rouskulp v. signed by the parties, as acquiescence Kershner, 49 Md. 524. in it for a length of time will render it Answer in Place of Plea. Instead of a stated account. Wood v. Gault, 2 a plea, the stated accounts may be Md. Ch. Dec. 433. given in an answer. Seamans v. 8. Daniell Ch. PI. & Pr., vol. i, 666. Burt, n R. I. 320. The word " settle " has a definite legal 11. Brown v. Van Dyke, 8 N. J. Eq. meaning, and implies the mutual ad- 795 ; Weed v. Smull, 7 Paige (N. Y.) justment of accounts between parties, 573; Leeycraft v. Dempsey, 15 Wend, and an agreement upon the balance. (N. Y.) 83 ; Stoughton v. Lynch, 2 Baxters. State, 9 Wis. 38. See Arm- Johns. Ch. (N. Y.) 209; Cruise v. strong v. Chemical Nat. Bank, 37 Fed. Walker, 6 Phila. (Pa.) 294. But the 101 Accounting in A CCO UNTS AND A CCO UN TING. Equity. and falsify the stated account. 1 b. UNDER THE CODES Must be Pleaded. Under the Codes a stated account must be specially pleaded to be available as a defence. 2 Eeply must Surcharge and Falsify. In analogy to the equity prac- tice, the reply must surcharge and falsify the plea. It is not enough to allege that the account was not a full account. 3 But where the code of procedure makes no provision for a reply, and the only pleadings allowed are the complaint and answer, the plea of stated account must be taken as denied. 4 5. Practice. It is the correct practice in suits for an accounting to dispose of all matters in bar of an accounting, before the account is stated or a reference ordered. 5 Costs. The taxation of costs is discretionary. 6 6. The Decree. The ordinary decree in an accounting case is that an account shall be taken. 7 bill need only be amended when an account has been given by the defend- ant. Vandyke v. Brown, 8 N. J. Eq. 657- Setting Down for Argument. Not amending the bill and setting down for argument a plea of stated accounts is equivalent to demurring to it. Al- len v. Woonsocket Co., II R. I. 288. 1. Costin v. Baxter, 6 Ired. Eq. (N. Car.) 197; Holcomb v. Holcomb, n N. J. Eq. 477. The amendment must charge either fraud or particular errors. Daniell Ch. PI. & Pr., vol. i, 668. 2. Mower County v. Smith, 22 Minn. 97 ; Derby v. Yale, 13 Hun (N. Y.) 273; Liscomb v. Agate, 67 Hun (N. Y.) 388. But where the defendant pleads an account stated, he may either rely thereon, or he may, on the trial, fall back upon the ac- counts, and show that there is in fact a balance due him. Goings v. Patten, i Daly (N. Y.) 168. 3. Barker v. Hoff, 52 How. Pr. (N. Y. Supreme Ct.) 382 ; Suttle v. Dog- gett, 87 N. Car. 203; Grant v. Bell, 87 N. Car. 34; Weeks v. Hoyt, 5 Hun (N. Y.) 347. See Welsh v. German American Bank, 42 N. Y. Super. Ct. 462; Mount v. Ellingwood, 2 Thomp. & C. (N. Y.) 527. When a note is given for balance and receipted for in full by mistake, the creditor may sue on the original account, and to a defence of account stated, where the reply is a general denial, all the facts can be shown. Clark v. Marbourg, 33 Kan. 471. Waiver. But the surcharging and falsifying may be waived. Unless the evidence of surcharging and falsifica- tion is objected to because it is un- authorized by the pleading, the failure to plead it is waived. Liscomb v. Agate, 67 Hun (N. Y.) 388. 4. Price v. Eccles, 73 N. Car. 162. 5. Auld v. Butcher, 2 Kan. 135. But an account is generally ordered to be taken before trying the validity of a release, especially if the com- plainant replies that he was under age when he signed it. Carter v. Alston, 2 Hayw. (N. Car.) 237. See Dampf's Appeal, 106 Pa. St. 72. A reference will not be ordered where the evidence shows that nothing is due. Nail v. Martin, 4 Ired. Eq. (N. Car.) 159. On the hearing of a bill for an ac- count, the only evidence, as a general rule, material or competent is such as goes to prove or disprove the com- plainant's right to an account. Stand- ish v. Babcock, 48 N. J. Eq. 386 ; Hud- son v. Trenton Locomotive, etc., Co., 16 N. J. Eq. 475. See article REFER- ENCES. 6. McGillaray v. Moser, 43 Kan. 219; Armstrong v. McAlpin, 18 Ohio St. 184. See Lubert v. Chauviteau, 3 Cal. 458 ; 58 Am. Dec. 415 ; Wall v. Covington, 76 N. Car. 150. If it ap- pears that defendant has unreasonably neglected to render an account, the court may impose the costs on him, though nothing is due plaintiff.. Knapp v. Edwards, 57 Wis. 191. See article COSTS. 7. Hudson v. Trenton Locomotive, etc., Co., 16 N, J. Eq. 475. Necessity for. Where the liability to 102 Accounting in A CCO UNTS A ND A CCO UN TING. Equity. Frame and Scope. The decree must direct to what matters the account shall extend, and in decreeing a general account, special directions will be rendered proper and necessary by the particu- lar circumstances of the case. 1 The decree usually directs that all the matters of account shall be adjusted down to the time of stating the accounts, although no facts are stated in respect to them in the pleadings. 54 Appeal. An interlocutory decree directing an accounting is not appealable. 3 Dismissal. After a decree for an account the complainant can- not dismiss his bill unless upon consent of defendant. 4 7. Appellate Proceedings. (See also APPEALS.) Objections to the account is denied, there must be an interlocutory decree finding such lia- bility, before there can be a reference to a master. Collyer v. Collyer, 38 Pa. St. 257. There is no necessity for an interlocutory decree to account where the parties have agreed on a final settlement, unless ground is laid for surcharging and falsifying the ac- count stated. Calvit v. Markham, 3 How. (Miss.) 343. If on the hearing the several items of account between the parties have been ascertained, the court can render judgment for the aggregate. Blodgett v. Hitt, 29 Wis. 171. See Ruckman v. Decker, 28 N. J. Eq. 5. Where an interlocutory order for an account is not reheard, it ought' to be taken as a declara- tion that the plaintiff is entitled to the account prayed for. Bailey v. Wilson, i Dev. & B. Eq. (N. Car.) 182. Court May Take Account. The court may itself take or state the account without a reference to a master. Em- ery v. Mason, 75 Cal. 222. 1. Hudson v. Trenton Locomotive, etc., Co., 16 N. J. Eq. 476. See Os- ment v. McElrath, 68 Cal. 466 ; 58 Am. Rep. 17, where the findings were held sufficient. The decree for an account should be according to the finding of the jury. Todd v. Clark, I Desaus. Eq. (S. Car.) 112. But a mere formal error does not vitiate a decree. Turner v. Morris, 27 Miss. 737. Principles of the Case. The court ought to settle the principles of the case, and put them in the form of in- structions to the master. Hunt v. Gorden, 52 Miss. 194. Agreements. The court must settle the construction and effect of agree- ments between the parties, by which their mutual dealings were regulated, and by which, consequently, the ac- count must be controlled. Hudson v. Trenton Locomotive, etc., Co., 16 N. J. Eq. 475. Sales. The court may specify as to how a sale in an accounting suit is to be conducted. More v. Calkins, 85 Cal. 177. But the decree appointing a receiver to sell need not expressly require him to act under oath, or to make return of his doings. Tomlin- son v. Ward, 2 Conn. 400. Numbering Directions. In England, where, by any decree or order, any ac- counts are directed to be taken, such direction is to be numbered, so that each distinct account may be desig- nated by a number. Daniell Ch. PI. & Pr., vol. 2, 1005. 2. Crosbie v. Leary, 6 Bosw. (N. Y.) 312 ; Neel's Appeal, 3 Penny (Pa.) 66 ; Hagar v. Whitmore, 82 Me. 248 ; Moore v. Swanton Tanning Co., 60 Vt. 459 ; Boyd v. Foot, 5 Bosw. (N. Y.) no. See McCaskill v. 'McBryde, 2 Ired, Eq. (N. Car.) 52. Reservation. Reservation in a judg- ment of leave to apply for an account may be made. Madison Ave. Baptist Church v. Baptist Church, 43 N. Y. Super. Ct. 157. See Youngs v. Youngs, 53 N. Y. 613. 3. Duff v. Duff, 71 Cal. 513. See Jenks v. Langdon, 21 Ohio St. 362. The court will never suspend proceed- ings under the decree, on the mere ground that if they are prosecuted the parties will, if the decree is reversed, be put to unnecessary expense. The taking of the account will not be sus- pended. Daniell Ch. PI. & Pr., vol. 2, 1471. 4. Cozzens z/. Sisson, 5 R. I. 489 ; Daniell Ch. PI. & Pr., vol. i, 794. See also as to decrees in accounting cases, article DECREES. 103 Accounting in A CCO UNTS AND A CCO UN TING. Equity. account will not be noticed in the appellate court unless excep- tions were filed in the court below. 1 And where an intricate ac- count is brought up with a reference to a master, and the burden of stating it is thus sought to be imposed on the appellate court, the court will reverse in order that a reference may be had. 2 8. Parties. The rule which requires that all parties interested in the object of a suit should be parties to the bill applies to all cases in which an account is sought against a defendant. One person cannot exhibit a bill against an accounting party without bringing before the court all persons who are interested in having the account taken, or in the result of it, otherwise the defendant might be harassed by as many suits as there are parties interested in the account. 3 Partners. Thus, in a suit for a partnership account, or for a share of a partnership adventure, it is in general necessary that all persons having shares in the same adventure should be parties. 4 1. Williamson v. Downs, 34 Miss. 402. 2. Steere v. Hoagland, 39 111. 264 ; Bressler v. McCune, 56 111. 475 ; Groch v. Stenger, 65 111. 481 ; River -v. Tous- lee, 62 111. 266 ; Sallee v. Morgan, 67 111. 376 ; Moss v. McCall, 75 111. 190 ; Patten v. Patten, 75 111. 446 ; Mosier v. Norton, 83 111. 519 ; Quayle v. Guild, 83 111. 553 ; Daly v. St. Patrick's Cath- olic Church, 97 111. 19 ; Cooper v. Mc- Neil, 9 111. App. 97 ; Gibbs v. Meserve, 12 111. App. 613 ; Dubourg de St. Colombe v. U. S., 7 Pet. (U. S.) 625. Where the cause has been sent back by the court of appeals for a further ac- count, so much of the account as was reported prior to the decree needs not to be supported by proof. Henshaw v. Freer, Bailey Eq. (S. Car) 311. See article APPEALS. 3. Daniell Ch. PI. & Pr., vol. i, 216 ; Story Eq. PI. 218 ; Moffat v. Far- quharson, 2 Bro. C. C. 338 ; Evans v. Stokes, i Keen 24; Stafford v. London, 2 Eq. Abr. 166 ; Cowslad v. Cely, Pre. Ch. 83 ; Scurry v. Morse, 9 Mod. 89 ; Darthez v. Clemens, 6 Beav. 165. The practice used to formerly obtain in chancery of referring the case to a master to inquire if all the persons interested were made parties. Daniell Ch. PI. & Pr., vol. i, 218 ; Sandilands v. Innes, 3 Sim. 264 ; Waite v. Tem- pler, i S. & S. 319. As a general rule, when by a fair construction of the bill, or at any stage of the pro- ceedings, it becomes certain that the judgment or decree must necessarily be directly against such of the re- spondents named as reside without the jurisdiction, and that no judg- ment or decree can be rendered against the respondent before the court without embracing and being binding on them or the estate in which they have an interest, the hearing cannot ordinarily proceed without them. Lawrence v. Rokes, 53 Me. no. 4. Ireton v. Lewis, Rep. temp. Finch 96 ; Moffat v. Farquharson, 2 Bro. C. C. 338 ; Good v. Blewit, 13 Ves. 397 ; Hills v. Nash, i Ph. 594 ; Cullenz/. Queensbury,! Bro. C. C. 101 ; Dozter v. Edwards, 3 Litt. (Ky.) 72 ; Wells v. Strange, 5 Ga. 22 ; Mudgett v. Gager, 52 Me. 541 ; Parsons v. Howard, 2 Woods (U. S.) i; Wilson v. Lassen, 5 Cal. 115; Colman v. Clem- ents, 2.3 Cal. 247; Young v. Allen, 52 Cal. 466. All those owning interests in a mining partnership must be par- ties to a bill filed for an account of the business. Settembre v. Putnam, 30 Cal. 490. In a suit for an accounting be- tween partners, a firm with whom they dealt are not necessary parties. Fisher v. Sweet, 67 Cal. 230. And a guaran- tor of one partner is not a proper party to a suit for an account of the partnership property. Bissell v. Ames, 17 Conn. 126. Eetiring Partner. A retiring partner should be a party to an accounting suit. Wilson v. Lassen, 5 Cal. 115. But a partner who has sold his inter- est to another partner is not a neces- sary party. Kilbourn v. Sunderland, 130 U. S. 505. But where the interest 104 Accounting in ACCO UNTS AND ACCO UN TING. Equity. Corporations. When a stockholder brings an action on behalf of the corporation against the directors for an accounting of moneys belonging to it, the corporation is a necessary party defendant. 1 Assignees. In any suit by a creditor against an assignee for the benefit of creditors, to compel him to account, all the creditors and the assignor must be parties. 2 Trusts. All the cestuis que trustent entitled to the income or any part of an estate in the hands of a trustee are necessary parties to a bill against such trustee for an accounting. 3 of the partner has been sold at an exe- cution sale, such partner is a neces- sary party to an accounting suit be- tween the other partner and the pur- chaser, even although his whereabouts is unknown. Wright v. Ward, 65 Cal. 525. Insolvents. In bill to settle part- nership accounts, insolvent partners must be parties; and if bankrupt, their assignees. Fuller v. Benjamin, 23 Me. 255; Mallow v. Hinde, 12 Wheat. . Badger, 2 Cliff. (U. S.) 137 ; Horan v. Long, n Tex. 229; Stearns v. Page, 7 How. (U. S.) 819; Chubbuck v. Vernam, 42 N. Y. 432; Porter v. Wormser, 94 N. Y. 431; Brown v. Welsh, 27 N. J. Eq. 429 ; Mebane v. Mebane, i Ired. Eq. (N. Car.) 403; Harrison v. Bradley, 5 Ired. Eq. (N. Car.) 136; Daniell Ch. PI. & Pr., vol. i, 372. But see Shugart v. Thompson, 10 Leigh (Va.) 452, where it was held that the bill should be con- strued liberally. Fraud. While the party may not surcharge and falsify at large, but only for items pointed out in the bill, yet if there is a suspicion of fraud cast upon the whole account, the liberty to surcharge and falsify is unrestricted, notwithstanding the bill contains no direct averment of fraud. Farnam v. Brooks, 9 Pick. (Mass.) 212; Bullock v. Boyd, Hoffm. Ch. (N. Y.)294; Daniell Ch. PL & Pr., vol. i, 668. Reply. Where the defendant pleads specially denying each error and also all fraud, the plaintiff must take issue and prove the error or fraud, or the court will not disturb the account. Blackledge v. Simpson, I Hayw. (N. Car.) 259. See Houston v. Dalton, 70 N. Car. 662; Compton v. Culberson, 2 Dev. Eq. (N. Car.) 93. Annexing Account. If the defendant pleads the account in bar he must an- nex a copy to the answer in support of his plea. Weed v. Smull, 7 Paige (N. Y.) 573; Meeker v. Marsh, I N. J. Eq. 198; Seymour v. Long Dock Co., 20 N. J. Eq. 396. And the account should be set forth with particularity, i Mill.. 418. 107 ACTIONS. By W. L. CRAWFORD. X WHAT is AN ACTION, no. 1. Generally ; Definition, no. 2. Special Proceedings, 112. a. Generally, it 2. b. Particular Proceedings, 112. II. WHAT is A CAUSE OF ACTION, n6. III. WHEN is AN ACTION COMMENCED, 119. 1 . Generally, 119. 2. In the Various States, 119. IV. ABOLITION OF FORMS OF ACTION, 141. 1. Statutory Provisions, 141. 2. Common-law Distinction Preserved at first, 142. 3. The True Rule Followed, 143. 4. Substantive Distinction Preserved, 144. 5. No New Causes of Action Created, 145. 6. The Civil Action a Substitute, 145. V. CHARACTER OF ACTION ; How DETERMINED UNDER CODE, 146. 1. A Question of Construction, 146. 2. When the Prayer may be Consulted, 147. 3. Actions Ex Contractu and Actions Ex Delictu, 147. VI. SPLITTING CAUSES OF ACTION, 148. 1. Generally, 148. 2. What Constitutes an Entire Cause of Action, 150. 3. Contracts Generally, 151. 4. Specific Contracts, 153. a. Sales, 153. b. Acounts, 153. c. Instalments, 154 d. Rent, 155. e. Notes, 156. f. Judgments, 156. ^. Services. 157. ^. Insurance Policies, 157. /. Interest, i 57. _/'. Assignments, 158. . Collateral Securities, 1 58. /. Fraud, 158. 5. 7V/.r, 159. 6. Claims as to Real Property, 162. 7. Fraud and Concealment by Defendant, 162. 108 ACTIONS. VII. JOINDER OF ACTIONS AT COMMON LAW, 163. 1. Common-law States, 163. 2. Joinder of Actions Dependent on Form, 164. 3. Single Cause of Action, 165. 4. Inconsistent Counts, 166. 5. Debt, 167. 6. Trover and Case, 168. 7. Assumpsit, 169. 8. Trespass, 169. 9. Actions Ex Contractu and Actions Ex Delictu, 170. 10. Penalties, 171. 11. Touching Real Estate, 173. 12. Certiorari and Mandamus, 174. 13. Replevin, 174. 14. Slander and Malicious Prosecution, 174. 15. Statement of Same Cause in Different Forms, 174. 1 6. Actions at Law and Suits in Equity, 175. 17. Louisiana, 176. 1 8. Actions Brought in a Representative Capacity, 177. 19. Joinder in Equity, 180. VIII. JOINDER OF CAUSES OF ACTION UNDER THE CODES, 180. 1. Code States, 180. 2. Causes of Action Arising out of" Same Transaction," 181. a. Generally, 181. . Single Cattse of Action, 183. *:. Meaning of the Term " Transaction," 185. an injunction was issued to restrain the removal of the records and office to a new. county seat, it was held that the action was commenced by the service of the writ of injunction, although the notice was not served until more than the period of limitations had elapsed. Sweatt v. Faville, 23 Iowa 321. Intent must be Continuous. Although the delivery of an original notice to the sheriff, with intent that it shall be served immediately, is a commence- ment of the action for the purposes of the statutes of limitations, yet such intent must be continuous until the service is effected. Where a notice was placed in the sheriff's hands, and he neglected to serve the same, but afterwards returned it to the plain- tiff's attorney, who lost it, and nearly two years later another notice was 126 When is an Action Commenced 1 ACTIONS. In the Various States. Kansas. The Code of Kansas provides that an action shall be deemed commenced, within the meaning of the statute of limita- tions, as to each defendant, at the date of the summons which is served on him or on a codefendant who is a joint contractor or otherwise united in interest with him. 1 drawn and served, it was held that the action was not begun with the de- livery of the first notice to the sheriff. Wolfenden v. Barry, 65 Iowa 653. Amendments of Pleadings. An amend- ment of a petition, which sets up no new cause of action, but simply states the original in another form, may be filed after the lapse of the statutory period of limitation. Cobb v. Illinois Cent. R. Co., 38 Iowa 601; Case r. Blood, 71 Iowa 632; Barke v. Early, 72 Iowa 273. And an amendment may be filed after the statutory limi- tation, setting up additional dam- ages arising out of the original cause of action. Cooper r. Mills County, 69 Iowa 350. And see Myers v. Kirt, 68 Iowa 124, an action to recover damages on account of unlawful sales of liquor to a woman's husband, and for a lien against the saloon property. The petition did not state facts suffi- cient to warrant a lien, but was al- lowed to be amended after the statu- tory period had barred the cause of action. Amendment as to Parties. Where one co-executor withdrew from the case, and the other filed an amended petition, claiming in her own right, filed and allowed without objection, this was held not to commence a new action, for the purposes of the statute of limitations. Wade r. Clark, 52 Iowa 158, 35 Am. Rep. 262. Attachment. The petition, affidavit for the writ, and attachment bond were filed 29 November, 1857, and the writ was issued on the same day. The original notice was dated 30 No- vember, and was received by the sheriff on the same day. The defend- ant moved to quash the writ of at- tachment because it was issued before the commencement of the action. Held, that when a petition is filed an action is so far commenced that a writ of attachment may issue before the original notice is placed in the hands of the sheriff for service. Hagan v. Burch, 8 Iowa 309. See also Reed v. Chubb, 9 Iowa 178; Elliott v. Stevens, 10 Iowa 418. An Illustration. Where the notice was placed in the sheriff's hands for service April I, but was not served until April 3, and the cause of action accrued April 2, it was held that the cause of action had accrued before suit commenced. Parkyn z>. Travis, 50 Iowa 436. 1. Code Civil Proc. 20. 57 pro- vides that an action may be com- menced in a court of record by filing in the office of the clerk of the proper court a petition, and causing a sum- mons to be issued thereon. See Gulp v. Steere, 47 Kan. 746 ; Wilkinson v. Elliott, 43 Kan. 590 ; Smith v. Bour- bon County, 43 Kan. 619 ; Pracht v. McNee, 40 Kan. i ; German F. Ins. Co. v. Bullene, 51 Kan. 764 ; Parsons Water Co. v. Hill, 46 Kan. 145 ; Ord- way -v. Cowles, 45 Kan. 447 ; Smith v. Payton, 13 Kan. 362 ; Carney v. Tay- lor, 4 Kan. 178 ; Searle v. Adams, 3 Kan. 515, 89 Am. Dec. 598 ; Thomp- son v. Wheeler, 29 Kan. 481. Issue of Process. The action is com- menced when the petition and prascipe are filed and when summons is issued. Per Valentine, J., in Dunlap v. McFar- land, 25 Kan. 490. Attachment. Where an action is commenced by the filing of a petition, a praecipe, and an affidavit for an order of attachment, and a summons and order of attachment are issued on the same day, and the order of attach- ment is served by levying upon certain real estate, and the defendant is not found, and afterward the summons and order of attachment are returned, and the plaintiff then proceeds to ob- tain service of the summons by publi- cation, and the first publication of the summons is made three days after the action is commenced, it was held that for the purposes of the attachment the action was deemed to have been commenced at the time of the filing of the petition, the praecipe, and the affi- davit for the order of attachment, and that the order of attachment was not invalid because issued before the action was commenced. Dunlap v. McFarland, 25 Kan. 490. 12' When is an Action Commenced ? ACTIONS. In the Various States Kentucky. In Kentucky an action is deemed commenced at the date of the first summons or process issued in good faith from the court or tribunal having jurisdiction of the cause of action. 1 Louisiana. Under the practice code of Louisiana an action is begun by petition addressed to a competent judge. 2 Maine. In Maine all civil actions, except scire facias and other special writs, are commenced by original writ. 3 United in Interest. In an action to enforce a mechanic's lien, the owner of the lot had conveyed the same away before suit ; summons was served on him thereafter. Held, that he was not so united in interest with the pur- chaser that the action could be deemed commenced as to such purchaser at the date of the summons served on the original owner. Rice v. Simpson, 30 Kan. 28. Silence of the Record. Where the rec- ord as brought to the appellate court fails to show when the action was commenced below, it is impossible to hold that a plea of the statute of limi- tations was improperly overruled. Marbourg v. McCormick, 23 Kan. 38. 1. General Statutes (1888), ch. 71, art. 4, Ji I ; Heckman v. Louisville, etc., R. Co., S$ Ky. 631 ; Louisville v. Smith, 87 Ky. 501 ; Newton v. Carson (Ky., 1887), s S. W. Rep. 475. Issuing Process. Issuing the writ, not the filing the declaration, is the commencement of the action. Thomp- son v. Bell, 6 T. B. Mon. (Ky.) 558 ; Butts v. Turner, 5 Bush (Ky.) 435 ; Kellar v. Stanley, 86 Ky. 240. Date of First Process. The date of the first summons or process issued in good faith is the date of commence- ment. Trabue v. Sayre, i Bush (Ky.) 129. Amendment as to Parties. In case of an amendment substituting new parties in place of the defendant, wrongfully made such, the action is only com- menced when the new parties are brought in. Leatherman v. Times Co., 88 Ky. 291 ; 21 Am. St. Rep. 342. 2. Art. 170, La. Code Prac.; Lalane v. Payne, 42 La. Ann. 152; Boyd v. Heine, 41 La. Ann. 393. The Statute of Limitations. A cita- tion served on a married woman under a petition in which she is sued as a single woman, cannot subsequently, after the defendant is sued as a mar- ried woman and duly cited, be invoked as a citation sufficient to interrupt prescription. Bertrand v. Knox, 39 La. Ann. 431. Where a co-owner of indivision of immovable property brings an action in his own name for the entire damage done to the estate by a trespasser, the citation in such suit will avail to interrupt prescription as to the other co-owner who afterwards intervenes and joins in the action. Becnel v. Wagnespack, 40 La. Ann. 109. 3. Rev. Sts. (1883), ch. 81, i; John- son v. Farwell, 7 Me. 372. Writ Brought in Wrong County. Donnell v. Gatchell, 38 Me. 217, hold- ing that the limitation was not sus- pended for six months from attaching to a cause of action, where the writ was abated by reason of being brought in the wrong county. Plea in Abatement. Biddeford Sav. Bank v. Mosher, 79 Me. 242, holding that a plea in abatement to a trustee writ, founded upon the fact that the alleged trustee was not a resident of the county, is bad if it does not allege the non-residence at the time of the commencement of the action. Unavoidable Accident ; Statute Con- strued. Marble v. Hinds, 67 Me. 203, a case construing 87, c. 81, Rev. Sts., as to failure of service, the result of unavoidable accident. Inevitable Accident Causing Failure of Service. If the plaintiff would avoid the bar of the statute of limitations by having seasonably sued out process, which failed of service through inevi- table accident in the transportation by mail, it is incumbent on him to show that he previously ascertained the course of the mail, and that a letter enclosing the precept, and properly directed, was put into the post-office sufficiently early to have reached the officer, by the ordinary route, in sea- son for legal service. A suit against the sheriff for default of his deputy, which is limited to four years, is barred thereafter, though the writ fail of service by inevitable accident. 128 When is an Action Commenced ? ACTIONS. In the Various States. Maryland. In Maryland the practice of bringing actions is a simplified common-law practice. The plaintiff delivers a written memorandum to the clerk of the court, who then issues sum- mons. The plaintiff only files his declaration after the summons is returned served. The action is probably commenced when summons is issued. 1 Massachusetts. An action is deemed to have been commenced ii Massachusetts on the day of the date of the writ. 18 Michigan. In Michigan it is probable that an action is com- menced when the declaration is filed. 3 Jewett v. Greene, 8 Me. 447; Brown v. Houdleth, 10 Me. 399. 1. See Tyler's Maryland Pleading, passim. Amendment of Pleading. The dec- laration may be amended, and the amendment relates back to the com- mencement of the action. Wolf v. Bauereis, 72 Md. 481. 2. Where a writ was filled up and dated before the expiration of the time limited by the statute for bring- ing the action, it was held that the action was not barred by the statute, although the writ was not served until such time had expired. Gardner v. Webber, 17 Pick. (Mass.) 407; Bunker v. Shed, 8 Met. (Mass.) 150. See Ford v. Phillips-, i Pick. (Mass.) 202; Emery v. Seavey, 148 Mass. 566; Cram v. Holt, {135 Mass. 46; Federhen v. Smith, 3 Allen (Mass.) 119; Swift v. Crocker, 21 Pick. (Mass.) 241; Butler v. Kimball, 5 Met. (Mass.) 94; Graves v. Cushman, 131 Mass. 359; Thorndike v. Wells, 146 Mass. 619; Phoenix Ins. Co. -v. Frissell, 142 Mass. 513; Lowe v. Harwood, 139 Mass. 133. Parol Evidence. The teste of a writ is prima fade evidence of the time when it was sued out, but it is not conclu- sive; and the actual time when it was sued out and delivered to the officer may be proved by parol evidence. Parkman v. Crosby, 16 Pick. (Mass) 297. Replevin. The date of a writ of re- plevin is not conclusive evidence of the time when the action was commenced; and if the cause of action had not ac- crued on the day of the date, but did accrue before the day of the service thereof, and there is no evidence of the time when the writ was given to the officer, the action may properly be considered as having been com- menced after the cause of action ac- crued. Federhen v. Smith, 3 Allen (Mass.) 119. See Field v. Jacobs, 12 Met. (Mass.) 118, where it was held that the action of replevin was com- menced when the writ was filled up, although not served nor given to an officer for service, nor a replevin bond filed, until after the expiration of twenty-four hours, the time limited by the statute to replevy impounded cattle. Provisional Writ. Where a writ is filled up provisionally, and delivered to an officer with instructions not to serve it until after a certain time or the happening of a certain event, the action will not be commenced until service of the writ. Seaver v. Lincoln, 21 Pick. (Mass.) 267. See Grimes v. Briggs, no Mass. 446. Where a writ of replevin was delivered to an officer, and he was directed before serving it to demand the goods from the party, and the same not being delivered he proceeded to replevy them, the writ and service were held good. Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 195. 3. Johnson v. Mead, 73 Mich. 326 ; Sheridan v. Cameron, 65 Mich. 680 ; Jlandall v. Gartner, 96 Mich. 284 ; People v. Clement, 72 Mich. 116 ; Bres- nahan v. Nugent, 92 Mich. 76 ; Detroit Free Press v. Bagg, 78 Mich. 650 ; Bogue v. Prentis, 47 Mich. 124 ; John- son -v. Mead, 58 Mich. 67 ; Spier v. Mc- Gueen, i Mich. 252 ; Pattridgew. Lott, 15 Mich. 251 ; Foote v. Pfeiffer, 70- Mich. 581 ; McOmlier v. Chapman, 42 Mich. 117. Filing Declaration. Where the dec- laration was sent to the county clerk without an entry fee, and he declined to file it, it was held that serving a copy on the defendant before the fee was paid and declaration filed was void, although the plaintiff immediately paid the entry fee and had the declaration filed as soon as the omission came to i Encyc. PI. & Pr. 9. 129 When is an Action Commenced 1 ACTIONS. In the Various States. Minnesota. The Statutes of Minnesota provide that an action is commenced as to each defendant when the summons is served on him. 1 Mississippi. In Mississippi an action is commenced from the time of the filing of the declaration, if a summons be issued thereon for the defendant. 2 Missouri. The Missouri Code provides that the filing a petition in a court of record, or a statement or account before a court not of record, and the suing out of process therein, shall be taken and deemed the commencement of a suit. 3 his attention, which was just after he had served a copy. Ellis v. Fletch- er, 40 Mich. 321. See also Wetherbee v. Kusterer, 41 Mich. 359. Issue of Summons. A suit is not be- gun, for the purposes of the statutes of limitations, by merely filling out a summons and leaving it in a justice's office until the return day, or by re- taining it in the plaintiff's custody ; it must be issued with the intent that, if practicable, it shall be served. How- ell v. Shepard, 48 Mich. 472. And a justice's summons is not issued if merely delivered to the plaintiff and kept in his hands. Howell v. Shep- ard, 48 Mich. 472. The date of a writ is prima facie evidence of the time of its actual issue, and defendant has the burden of proving that it was not then issued. Howell v. Shepard, 48 Mich. 472. Attachment. An attachment pro- ceeding is begun when the writ issues, not when the declaration is filed. Gal- loway -v. Holmes, i Dougl. (Mich.) 330. Presumption. Plaintiff commenced two suits against defendant on the same day, for the same cause of action one by declaration, the other by attachment. The court presumed, nothing appearing on the record to the contrary, that the suit by declaration was filed first, and held that a plea of that suit in abatement of the attach- ment suit was bad, because the plea did not state that it was still pending. Wales v. Jones, i Mich. 254. See also Pew v. Yoare, 12 Mich. 16. Amendment. An amendment to a declaration counting on the conversion of "953 bushels of wheat of the value of $1040," which strikes out that item, and inserts in its place, "31 acres of growing wheat of the value of $800," introduces a new cause of action, and cannot be allowed at a time when such new cause of action is barred. Nu- gent v. Adsit, 93 Mich. 462. 1. Rev. Sts. 4698 ; Bruns v. Schrei- ber, 48 Minn. 366 ; Hooper v. Farwell, 3 Minn. 106 ; Auerbach v. Maynard, 26 Minn. 421 ; Lough v. Pitman, 25 Minn. 120. 2. Rev. Code (1880), 1522 ; Brown v. Goolsby, 34 Miss. 437 ; Benson v. Stew- art, 30 Miss. 49. Issuing of Process. The commence- ment of the action, within the mean- ing of the statute, is the suing out of a writ and placing it in the hands of the officer for service, and not the filing of the declaration. Lamkin v. Mye, 43 Miss. 241. Chancery Suits. The filing of the bill, and not the issuance of the process, is so far a commencement of a suit in the chancery court as to stop the run- ning of the statute of limitations. Bacon v. Gardner, 23 Miss. 60. Distinction between Commencement of an Action and Lis Pendens. There is a substantial difference between the com- mencement of an action and its being a suit pending between the parties ; the first having reference only to the act of the plaintiff, but the second having reference also to the position of the defendant. Allen v. Mandaville, 26 Miss. 397. 3. Wagner's Rev. Sts. Mo. 2013 ; Baker v. Missouri Pac. R. Co., 34 Mo. App. 98 ; Sutton v. Dameron, 100 Mo. 141 ; Smith v. Boese, 39 Mo. App. 15 ; Smith v. Barrett, 41 Mo. App. 460 ; Lilly v. Toblein, 103 Mo. 477 ; 23 Am. St. Rep. 887 ; South Missouri Lumber Co. -v. Wright, 114 Mo. 326. Filing of the Declaration. " In this country, the filing of the declaration, and not the return of the writ, must be considered the commencement of the suit." Per Wash, J., in Dougherty v. Downey, I Mo. 674. But see Fen- wick v. Gill, 38 Mo. 510, where, at p. 130 When is an Action Commenced 1 ACTIONS. In the Various States. Montana. When the state of Montana was a territory, its Code provided that an action is commenced by filing a complaint. This is probably the law now, since the state's admission into the Union. 1 Nebraska. Nebraska provides by statute that an action shall be deemed commenced, within the meaning of the statute of limita- tions, as to the defendant, at the date of the summons which is served on him. 2 Nevada. Civil actions in the district courts of Nevada are com- menced by the filing of a complaint with the clerk of the court, and the issuance of a summons thereon. 3 New Hampshire. The supreme court of New Hampshire holds that the time when an action is commenced is the time when the writ is in fact filled up with the declaration in order to have it served upon the opposite party. 4 52$, Holmes, J., says: "The sum- mons was served on the defendant on the 3ist day of October, 1858. Strictly speaking this was the commencement of the suit." Attachment. Where suit is com- menced by attaching the defendant's property, the plaintiff may take depo- sitions before summons served or publication completed, because it is a pending suit. Lewin v. Dille, 17 Mo. 64. Mechanic's Lien. Where, in a suit on a mechanic's lien, the petition is filed ninety days after the filing of the lien, the action is commenced within the meaning of the statute (Wagn. Sts. 911, 16), and the lienor is not barred although the writ is issued subsequent to that period. Gosline v. Thompson, 61 Mo. 471. And see Spurlock v. Sproule, 72 Mo. 503, 507, which applies the doctrine generally, that an action is commenced when the petition is filed. Amendment. An amended petition correcting the original description in a suit on a mechanic's lien is merely a continuance of the original action; and where that was brought within ninety days after filing the lien, the plaintiff is not barred by the lien limitation law. Mann v. Schroer, 50 Mo. 306. And where an amendment sets up no new matter or claim, it re- lates to the commencement of the suit; but where it introduces a new claim, the running of the statute continues to the time of filing the amendment. Buel v. St. Louis Transfer Co., 45 Mo. 562. See also Smith v. Missouri Pac. R. Co., 50 Fed. Rep. 760. Understanding of Counsel. Where a bill was filed in time, but a summons did not issue until afterward, owing to an understanding that the defendant would appear without a summons, the suit was held not barred. Wright v. Pratt, 17 Mo. 43. Depositing a Special Tax Bill. The depositing a special tax bill with the justice before the five years' limitation had run out, but not delivering pro- cess to the constable until it had expired, is not such commencement of suit as to save the action from the bar of the statute. Turner v. Burns, 42 Mo. App. 94. What is the Issuing of an Execution. The mere writ, lying in the clerk's office, in no officer's hands who could enforce it, ought not to be held the " issuing " of an execution, within the meaning of the statute. An order or writ not sent out is not "issued." Burton v. Deleplain, 25 Mo. App. 376. 1. Code Civ. Proc. Montana Ter. 66. 2. Code Civ. Proc. iq ; Johnson v. Jones, 2 Neb. 126; Burlingim v. Cooper, 36 Neb. 73. Amendment as to Parties. In an ac- tion to foreclose a mechanic's lien, an amendment making the owner of the legal title party commences the suit as to him only from the time he was made a party. Green v. Sanford, 34 Neb. 363- 3. Code Civ. Proc. 22. See also 23, providing that at any time with- in one year after the filing of a c om- plaint the plaintiff may cause to be issued a summons thereon. Rose v. Richmond Min. Co., 17 Nev. 25. 4. Society, etc., v. Whitcomb, 2 N. H. 227. See Gagnon v. Connor, 64 N. When is an Action Commenced 1 ACTIONS. In the Various States. Naw Jersey. In New Jersey a suit is commenced as soon as the writ is sealed and issued out of the office, in good faith, for the purpose of being served or proceeded on, and that purpose is not afterward abandoned. 1 New Mexico. The Compiled Laws of New Mexico prescribe that all suits at law in the district courts shall be commenced by filing a declaration in the office of the clerk of the court. 2 New York. The New York Code of Civil Procedure provides that a civil action is commenced by the service of a summons; also that an action is commenced against a defendant, within the H. 276 ; Buswell v. Babbitt, 65 N. H. 168. Parol Evidence. The date and not the service of the writ is prima facie evidence of the true time when it was sued out. But this prima facie evi- dence may be rebutted and the true time shown by parol testimony. Soci- ety, etc. v. Whitcomb, 2 N. H. 227. Limitations ; Suits in Equity, etc. "An action at law is in general re- garded as commenced, so as to avoid the statute of limitations, when the writ is completed with the purpose of making immediate service. But when there is no intention to have it served, or where it cannot be served until some further act is done, the action is not deemed to be commenced until such act is performed. The same rule is applicable to suits in equity. A bill in equity must be filed in the clerk's of- fice and an order of notice obtained be- fore it can be served upon the defend- ant. The date of the filing is therefore the earliest time which can be taken as the commencement of the suit." Per Carpenter, J., in Clark v. Slayton, 63 N. H. 402. Provisional Writ. When the writ is placed in the hands of the officer, but not to be served until after demand, the suit is not commenced till demand. Robinson v. Burleigh, 5 N. H. 225 ; Leach v. Noyes, 45 N. H. 364; Graves v. Ticknor, 6 N. H. 537; Hardy v. Cor- liss, 21 N. H. 356 ; Mason v. Cheney, 47 N. H. 24; Brewster v. Brewster, 52 N. H. 60. Set-off. In general, an action is com- menced, so as to exclude a subsequent set-off, when the writ is made out and placed in the hands of the officer for service. Hardy v. Corliss, 21 N.H. 356. Writ under Control of Party. A writ, until served, is under the control of the party, and may be changed by him. Plumer v. Fogg, 18 N. H. 559. 1. White v. Hunt, 6 N. J. L. 415; Bank of Elizabeth v. Barber, 8 N. J. L. 309; Kirkpatrick v. McElroy, 41 N. J. Eq. 539. Thus, where an attorney sued out a summons and showed it to- a defendant requesting him to sign his appearance to it, and the defendant promised to do so in case he could not arrange with plaintiff, and defendant afterward appeared to that summons, the suit was considered as having been actually commenced at the time the summons was first shown to the de- fendant, so that a note acquired by the defendant subsequent to that time could not be set off. Whitaker v. Turnbull, 18 N. J. L. 172. And like- wise when a summons was prepared and sealed by an attorney, in the usual manner, as agent of the clerk of the court, and suffered to remain upon his table without being given to the sheriff, while awaiting an answer to a proposal for an arbitration, and was afterwards served prior to the term to which it was returnable, it was held that the making and sealing the writ by the attorney, in good faith, and for the purpose of having it served, was the commencement of the suit, al- though the statute of limitations barred the claim before the summons had been placed in the sheriff's hands for service. Updike v. Ten Broeck, 32 N. J. L. 105. Scire Facias. The writ of scire facias, referred to in section fifty-one of the Attachment Act, must necessarily be regarded in the nature of a summons, and as the commencement of an ac- tion. Delaware, etc., R. Co. v. Dit- ton, 36 N. J. L. 361. 2. Compiled Laws (1884), 1907. And see same section, establishing pleadings and practice according to the forms and rules of the common law, and differentiating law pleading; and practice from equity. 132 "When is an Action Commenced 1 ACTIONS. In the Various States. meaning of any provision of the act which limits the time for commencing an action, when the summons is served on him, or on a codefendant who is a joint contractor or otherwise united in in- terest with him. 1 1. Code Civ. Proc. 416 and 398. See also Evans v. Cleveland, 72 N. Y. 486; Palmer v. Ensign, 19 Alb. L. J. 399; Clare v. Lockhard, 122 N.Y. 263; Shaw v. Cock, 78 N. Y. 194; Jack- son v. Haviland, 13 Johns. (N. Y.) 229; Akin v. Albany Northern R. Co., 14 How. Pr. (N. Y. Supreme Ct.) 337; Treadwell v. Lawlor, 15 How. Pr. (N. Y. Supreme Ct.) 8; Burkhardt v. Sanford, 7 How. Pr. (N. Y. Supreme Ct.) 329; Matter of Griswold, 13 Barb. {N. Y.) 412; More v. Thayer, 10 Barb. . Dillingham, 43 Hun (N. Y.) 493; Hinton v. Wilson, 22 N. Y. Wkly. Dig. 90. Converting Action Ex Delicto into one Ex Contractu. Where a complaint states a cause of action ex delicto, it is not competent at the trial to convert it into one ex contractu. Neudecker z/. Kohlberg, 81 N. Y. 296. Judgment Must Follow Pleadings. Notwithstanding the liberal rule of construction applied to pleadings under the Code, the principle still re- mains that the judgment to be ren- dered by any court must be secundum allegata et-probata. Neudecker v. Kohl- berg, 81 N. Y. 296. 2. New York. Secor v. Sturgis, 16 N. Y. 548 ; Farrington^. Payne, 15 Johns. (N. Y.) 432; Smith v. Jones, 15 Johns. (N. Y.) 229; Phillips v. Berick, 16 Johns. (N. Y.) 137; Miller v. Covert, i Wend. (N.Y.)487; Guernsey v. Carver, 8 Wend. (N. Y.) 492; Stevens v. Lock- wood, 13 Wend. (N. Y.) 644; Colvin v. Corwin, 15 Wend. (N. Y.)557; Bender- nagle v. Cocks, 19 Wend. (N. Y.) 207; Willard v. Sperry, 16 Johns. (N. Y.) 121 ; Brockway v. Kinney, 2 Johns. (N. Y.) 210; Hillman v. Hillman, 14 How. Pr. (N. Y. Supreme Ct.) 456; Van Zandt v. Mayor, 8 Bosw. (N. Y.) 375; Bancroft v. Winspear, 44 Barb. (N. Y.) 209; Mills v. Garrison, 42 N. Y. 40; Smith v. Moonelis (C. PI.), 44 N. Y. St. Rep. 638; Haskin v. New York, n Hun (N. Y.) 436; Hayes v. Reese, 34 Barb. (N. Y.) 151; Stowell v. Chamber- lain, 60 N. Y. 272; Dobson v. Pearce, 12 N. Y. 156; Van Alen v. Rogers ijohns Cas.(N. Y.) 281; Clark v. Jones, i Den. (N. Y.) 519; Tuska v. O'Brien, 148 Splitting Causes of Action. ACTIONS. Generally. Foundation of Rule. The reason for this rule is one of substantive law, and has its foundation in the two maxims, Interest rei pub- 68 N. Y. 446; Benson v. Matsdorf, 2 Johns. (N. Y.) 369; Pray v. Hegeman, 98 N. Y. 352; Jackson v. Randall, n Johns. (N. Y.)4O5; Staples v. Good- rich, 21 Barb. (N. Y,) 317; Thompson v. Wood, I Hilt. (N. Y.) 93; Coggins v. Bulwinkle, i E. D. Smith (N. Y.) 434; Reformed, etc., Church v. Brown, 54 Barb. (N. Y.)igi; Fish v. Policy, 6 Hill (N. Y.) 54; O'Beirne v. Lloyd, 43 N. Y. 2 4 S. Virginia. Bates v. Quattlebom, 2 Nott & M. (S. Car.) 205; Hite v. Long, 6 Rand. (Va.) 457; Tilson v. Davis, 32 Gratt. (Va.)92. Pennsylvania. Ingraham v. Hall. II S. & R. (Pa.) 78; Simes v. Zane, 24 Pa. St. 242; Kilheffer v. Herr, 17 S. & R. (Pa.) 319; Smith z/. Elliott, 9 Pa. St. 345; Sykes v. Gerber, 98 Pa. St. 179; Alcott v. Hugus, 105 Pa. St. 350; Kille v. Ege, 82 Pa. St. 102; Logans v, Caffrey, 30 Pa. St. 196; Smedley v. Tucker, 3 Phila, (Pa.) 259; Carvill v. Garrigues, 5 Pa. St. 152; Buck v. Wilson, 113 Pa. St. 423; Marsh v. Pier, 4 Rawle (Pa.) 273; Corbet v. Evans, 25 Pa. St. 310; Lyon v. Miller, 24 Pa. St. 392; Com. v. Trimmer, 84 Pa. St. 65; Kane v. Fisher, 2 Watts (Pa.) 246. Missouri. Ruddle v. Horine, 34 Mo. App. 616; Kavanaugh v. Shaughnessy, 41 Mo. App. 657; Funk v. Funk, 35 Mo. App. 246; Wickersham v. Whedon, 33 Mo. 561; Carroll v. Woodlock, 13 Mo. App. 574; Piel v. Finck, 19 Mo. App. 338; Laine v. Francis, 15 Mo. App. 107; Kitchen v. Clark, i Mo. App. 430; Union, etc., R. Co. v. Traube, 59 Mo. 355; Wagner v. Jacoby, 26 Mo. 532; Kerr v. Simmons, 9 Mo. App. 376; Tay- lor v. Heitz, 87 Mo. 660. Massachusetts. Stearns v. Quincy Mut. F. Ins. Co., 124 Mass. 61; Gibson v. Cooke, 20 Pick. (Mass.) 15; Stevens v. Tuite, 104 Mass. 328; Goodrich v. Yale, 8 Allen (Mass.) 454; White v. Moseley, 8 Pick. (Mass.) 356; Trask v. Hartford, etc., R. Co., 2 Allen (Mass.) 331; Clark v. Baker, 5 Met. (Mass.) 452; Minor v. Walter, 17 Mass. 237; Denny v. Williams, 5 Allen (Mass.) 4; Brigham v. Fayerweather, 140 Mass. 411; Emerson v. Thompson, 2 Pick. (Mass.) 473; Warren v. Comings, 6 Cush. (Mass.) 103; Jones v. Richard- son, 5 Met. (Mass.) 247; Osborne v. Atkins, 6 Gray (Mass.) 423. Alabama. Liddell v. Chidester, 84 Ala. 508; Wetumpka v. Wetumpka Wharf Co., 63 Ala. 611; Strang v. Moog, 72 Ala. 460; Broda v. Green- wald,66Ala. 538; Alabama Warehouse Co. v. Jones, 62 Ala. 550; Wilkins v. Judge, 14 Ala. 135; Yarborough v. Av- ant, 66 Ala. 526; Jenkins v. Harrison, 66 Ala. 345; Brady v. Huff, 75 Ala. 81; Norwood v. Kirby, 70 Ala. 397; Haral- son v. George, 56 Ala. 295; O'Neal v. Brown 21 Ala. 482; Moorer v. Moorer, 84 Ala. 353. North Carolina. Young v. Young, 81 N. Car. 91; Pendleton v. Dalton, 92 N. Car. 185. Ohio. Stein v. Steamboat Prairie Rose, 17 Ohio St. 471; Erwin v. Lynn. 16 Ohio St. 539. Illinois. Brewer v. Christine, 9 111. App. 57. Georgia. Evans v. Collier, 79 Ga. 319; Baldwin v. McCrea, 38 Ga. 650. California. Nightingale z/.Scannell, 6 Cal. 506; Herriter v. Porter, 23 Cal. 385; Shinn v. Young, 57 Cal. 525; Tay- lor -v. Castle, 42 Cal. 367. Kansas. Tootle v. Wells, 39 Kan. 452; Bond v. Weed Sewing Mach. Co., 23 Kan. 119; Wichita, etc., R. Co. v. Beebe, 39 Kan. 465; Whitaker v. Hawley, 30 Kan. 317; Barton County v. Plumb, 20 Kan. 147. Connecticut. Marlborough v. Sisson, 31 Conn. 332; Pinney v. Barnes, 17 Conn. 420; Lane v. Cook, 3 Day (Conn.) 255; Bunnel v. Pinto, 2 Conn. 431; Avery v. Fitch, 4 Conn. 362; Pearce v. Olney, 20 Conn. 544. Iowa. Watson v. Van Meter, 43 Iowa 76. Wisconsin. Williams v. Williams, 63 Wis. 58. Maine. Ware v. Percival, 61 Me. 391- Vermont. Hayward v. Clark, 50 Vt. 612; Perkins v. Walker, 19 Vt. 144; Hunt v. Payne, 29 Vt. 172. Michigan. Clark v. Wiles, 54 Mich. 323. New Jersey. School Dist. No. 28 v. Stocker, 42 N. J. L. 115; Hendrickson v. Norcross, 17 N. J. L. 417. Indiana. Faught v. Faught, 98 Ind. 470. Minnesota. Wisconsin v. Torinus, 28 Minn. 175; Hardin v. Palmerlee, 28 Minn. 450. Nebraska. Beck v. Deveraux.g Neb. 109. 149 Splitting Causes of Action. A CTIONS. What Constitutes Entire Cause. licce, ut sit finis lituum, and Nemo debet bis vexari pro una et eadam cause. * 2. What Constitutes an Entire Cause of Action. There is no precise rule for determining what constitutes an entire cause of action with- in the meaning of the above rule. It depends upon the facts of each particular case, and is often a difficult question. Certain general rules, however, may be formulated. 2 United States. Marine Ins. Co. v. Hodgson, 7 Cranch (U. S.) 332; Hen- drickson v. Hinckley, 17 How. (U. S.) 444; Parker v. Judges, 12 Wheat. (U. S.) 561; Davenport v. Lord, 9 Wall. (U. S.)4og; Embry v. Palmer, 107 U. S. 3; Bartels v. Schell, 16 Fed. Rep. 341; Hughes v. Dundee Trust Invest. Co., 26 Fed. Rep. 831; Stockton v. Ford, 18 How. (U. S.) 418; Stark v. Starr, 94 U. S. 492; Baird v. U. S., 96 U. S. 430. England. Fetter v. Beale, i Salk. ii ; Barwell v. Kensey, 3 Lev. 179; Gibbs v. Cruskshanks, L. R. 8 C. P. 454; Bagot v. Williams, 3 B. &. C. 235, 10 E. C. L. 62; Hodsoll v. Stalle- brass, 11 Ad. & El. 301, 39 E. C. L. 94; Burn -v. Carvalho, 4 Myl. & C. 690; Phosphate Sewage Co. v. Molleson, 4 App. Cas. 801; Beere v. Fleming, 13 Ir. C. L. 506; Dundas v. Waddell, 5 App. Cas. 249: Woods v. Russell, 5 B. & A. 942; Seddon v. Tutop, 6 T. R. 607; Harris v. Mulkern, i Exch. Div. 31; Aslin -v. Parkin, 2 Burr. 665; Man v. Drexel, 2 Pa. St. 202; Newington v. Levy, L. R. 6 C. P. 180; Routledge v. Hislop, 2 El. & El. 549; Finney v. Fin- ney, L. R. i P. & M-483; Buckland v. Johnson, 15 C. B. 145, 80 E. C. L. 145; Hitchin v. Campbell, 3 Wils. 240; Slade's Case, 4 Coke 92 b. ; Eastmure v. Laws, 5 Bing. N. Cas. 444; 35 E. C. L. 170. Mistake. Taking judgment by mis- take for a less sum than due will not justify the plaintiff in recovering the residue in a new action. Ewing v. McNairy, 20 Ohio St. 315; Keokuk County v. Alexander, 21 Iowa 379; Wickersham v. Whedon, 33 Mo. 561; Saddler v. Apple, 9 Humph. (Tenn.) 342. But see Byrket z/.State,3 Ind.248. 1. See remarks of Miller, J., passim, in U. S. v. Throckmorton, 98 U. S. 65 ; Brunsden v. Humphry, 14 Q. B. Div. 141. Not a Technicality. The principle which prevents the splitting up of causes of action, and forbids double vexation for the same thing, is a rule of justice, and not to be classed among technicalities. It was intended to sup- press serious grievances. Dutton v. Shaw, 35 Mich. 431. Exhausting Possibilities of Suit. Where a pending suit is one in which it is legally possible for a judgment to be rendered upon the cause of action alleged in the second, and was brought for the purpose of ob- taining such a judgment, the plain- tiff is bound to exhaust the possibili- ties of that suit before subjecting the defendant to the cost of a second suit. Damon v. Denny, 54 Conn. 253. See also Hitchin v. Campbell, 2 W. Bl. 827 ; Martin v. Kennedy, 2 B. & P. 71 ; Seddon v. Tutop, 6 T. R. 607 ; Thorpe v. Cooper, 5 Bing. 116, 15 E C. L. 387. Justice of Eule Questioned. The rule against splitting a cause of action has not in all cases gone unchallenged ; the fact that it may be used as a sword instead of as a shield has been pointed out by an eminent judge : " For the defendant reliance has in effect been placed upon the maxim Interest reipub- licce ut sit Jinis lituum ; and it has been contended that it enunciates an admirable rule of law. When that rule is applied to damages which are patent, it is a good rule ; but where damages are afterwards developed it is not a rule to be commended. It is a rule which sometimes produces a harsh result, and if it were now for the first time put forward I could not as- sent to its being pushed to the length to which it has sometimes been carried ; in fact it is never wanted ex- cept when injury, undeveloped at the time of action brought, is afterwards developed." Per Brett, J., in Bruns- den v. Humphrey, 14 Q. B. Div. 145. Application in Equity. While the rule is rigidly enforced in common-law ac- tions, there are many cases in equity where the courts having ample power so to mould the relief granted as to prevent injustice, will not enforce it unless equity in the particular case re- quires it. O'Dougherty v. Remington Paper Co., Si N. Y. 499. 8. Hill v. Joy, 149 Pa. St. 243. Splitting Causes of Action. ACTIONS. Contracts Generally. 3. Contracts Generally. In respect to contracts express or implied, each contract affords one and only one cause of action. 1 While the law does not favor the unnecessary splitting of causes of ac- tion, it does not require that two dis- tinct causes of action shall be brought into one litigation. The nearer the controversy is to being single, the more likely the jury is to dispose of it with full intelligence and justice. Morehouse v. Baker, 48 Mich. 335. In Stickel v. Steel, 41 Mich. 350, the principle is advanced that claims originally one and indivisible may become single and separated, and in turn may again return to their indi- visible state. Cooley, J., uses this lan- guage : "In short if the two bills con- stituted one demand in their origin, they must have become two for all le- gal purposes when the one fell due be- fore the other ; and if united again by the other falling due, they would be again separated when the remedy on one was barred, or whenever anything occured which should render one the subject of a suit when the other was not." 1. New York. Secor v. Sturgis, 16 N.Y. 548; Millers. Covert, i Wend. (N. Y.) 487; Farrington v. Payne, 15 Johns. (N. Y.) 432 ; Phillips v. Berick, 16 Johns. (N. Y.) 136; Millard v. Mis- souri, etc., R. Co., 86 N. Y. 441; Stone- man v. Erie R. Co., 52 N. Y. 429; Slo- man v. Great Western R. Co., 267 N. Y. 208; Gardners. Patten (C. PL), 15 N. Y. Supp. 324; Millard v. Missouri, etc., R. Co., 20 Hun (N. Y.) 191 ; Mills v. Garrison, 42 N. Y. 40 ; O'Beirne v. Lloyd, 43 N. Y. 248. Missouri. Brooks v. Ancell, 51 Mo. 178; Comstock v. Davis, 51 Mo. 569; Ruddle v. Horine, 34 Mo. App. 616. Mississippi. McLendon v. Pass, 66 Miss, no; Grayson v. Williams, Walk- er Miss. 298 ; Ash v. Lee, 51 Miss. 101 ; Pittman v. Chrisman, 59 Miss. 124; Scofield v. Pensons, 26 Miss. 402; Mobile, etc., R. Co. v. State, 51 Miss. 137- Wisconsin. Roehring v. Huebsch- mann, 34 Wis. 185. Kansas. Madden v. Smith, 28 Kan. 798. Indiana. Smiley v. Deweese, I Ind. App. 211. Massachusetts. Harding v. Hale, 2 Gray (Mass.) 399; Badger v. Titcomb, 15 Pick. (Mass.) 409. Michigan. Beecher v. Pettee, 40 Mich. 181; Morehouse v. Baker, 48 Mich. 335. California. Wetmore v. San Fran- cisco, 44 Cal. 295. Iowa. Clark v. Sammons, 12 Iowa 368; Taylor v. Chambers, i Iowa 124; Aultman v. Mount, 62 Iowa 674; Drake v. Vorse, 42 Iowa 653; Street v. Beck- man, 43 Iowa 496. Nebraska. Gapen v. Bretternitz, 31 Neb. 302. Alabama. South & North Alabama R. Co. v. Henlein, 56 Ala. 368; Rake v. Pope, 7 Ala. 161 ; Oliver v. Holt, II Ala. 574 ; O'Neal v. Brown, 21 Ala. 482; McLane v. Miller, 12 Ala. 643. Connecticut. Bunnell z: Pinto, 2 Conn. 431. New Hampshire. Britton v. Turner, 6 N. H. 481. England. Rex v. Herefordshire, I B. & Ad. 572. Attachment Bond. An attachment bond is indivisible. Davis v. Milburn, 4 Iowa 246. Indemnity Bond. An indemnity bond may give rise to several causes of ac- tion. Orendorff v. Utz, 48 Md. 298; Ahl v. Ahl, 60 Md. 207. See Bristowe v. Fairclough, i M. & G. 143 ; Flor- ence v. Dfayson, I C. B. N. S. 584, 87 E. C. L. 584; Butler v. Wright, 2 Wend. (N. Y.) 369- Accounting. Several causes of ac- tion may grow out of an accounting. Kane v. Morehouse, 46 Conn. 300. Taxes. Each year's taxes constitute a separate and distinct cause of action. Davenport v. Chicago, etc., R. Co., 38 Iowa 633. See also Arnold v. Arnold, 17 Pick. (Mass.) 4; Ferrer's Case, 6 Coke 7; Beere v. Fleming, 13 Ir. C. L. 506; Cleaton v. Chambliss, 6 Rand. (Va.) 86; Clark v. Young, i Cranch (U. S.) 181; Washington, etc., Steam Packet Co. v. Sickels, 5 Wall. (U. S.) 580; Norton v. Huxley, 13 Gray (Mass.) 285; Harding v. Hale, 2 Gray (Mass.) 399; Marsh v. Pier, 4 Rawle (Pa.) 273; Myers v. Johnson, 14 Iowa 47; Clark v. Sam- mons, 12 Iowa 368; Ricker v. Hooper, 35 Vt. 457. Board. A single claim for board cannot be split. Bowers v. Smith (Supreme Ct.), 8 N. Y. Supp. 226. See O'Beirne v. Lloyd, 43 N. Y. 248; Hopf v. Myers, 42 Barb. (N. Y.) 270. Money Lost at Gaming. Money lost at gaming on different days constitutes Splitting Causes of Action. ACTIONS. Contracts Generally. But just what makes a single contract, giving only the one right of action which cannot be split, is often a difficult question, and the cases are not altogether harmonious. 1 Independent stipulations. The bare fact that two causes of action spring out of the same contract does not ip so facto render a judg- ment on one a bar to a suit on the other.* The same contract may contain independent stipulations, and an action may be maintained on each stipulation as it is broken. 3 different causes of action. Caldwell v. Caldwell, 2 Bush (Ky.) 446; Betts v. Hillman, 15 Abb. Pr. (N. Y. C. P. L.) 184. 1. Parsons' Bules. The following are Parsons' rules for the determination of the question whether a contract is sep- erable or entire: If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. 2 Parsons on Contracts 517, citing Johnson v. Johnson, 3 B. & P. 162; Withers z>. Reynolds, 2 B. & Ad. 882; Mayfield v. Wadsley, 3 B. & C. 357; Mavor v. Pyne, 3 Bing. 285, n E. C. L. 104; Robinson v. Green, 3 Met. (Mass.) 159; Perkins v. Hart, n Wheat. (U. S.) 237; Sickels v. Patti- son, 14 Wend. (N. Y.) 257; McKnight v. Dunlop, 4 Barb. (N. Y.) 36; Snook v. Fries, 19 Barb. (N. Y.) 313; Carleton v. Woods, 28 N. H. 290; Robinson v. Snyder, 25 Pa. St. 203; Lucesco Oil Co. v. Brewer, 66 Pa. St. 351; Quigley v. DeHaas, 82 Pa. St. 267; Scott v. Kit- tanning Co., 89 Pa. St. 231. The contract is severable where the price to be paid is clearly and distinct- ly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire. 2 Parsons on Cont. 517, citing Woods v. Russell, 5 B. & Ad. 942; Clarke v. Spence, 4 Ad. & El. 448, 31 E.G. L. 107; Laidler v. Burlinson, 2 M. & W. 602; Wood v. Bell, 5 El. & Bl. 772, 85 E. C. L. 771; Cunningham z>. Morrell, 10 Johns. (N. Y.) 203; Andrews -v. Du- rant, n N. Y. 35; Moody v. Brown, 37 Me. 107. But the mere fact that the subject of the contract is sold by weight or measure, and the value is ascertained by the price affixed to each pound, or yard, or bushel of the quantity con- tracted for, will not be sufficient to render the contract severable. 2 Par- sons on Contracts, citing Clark v. Baker, 5 Met. (Mass.) 452; Davis v. Maxwell, 12 Met. (Mass.) 286; Baker v. Higgins, 21 N. Y. 397; Mansfield v. Trigg, 113 Mass. 350; Young v. Wake- field, 121 Mass. 91. If the consideration is entire, this makes the contract one and indivisible. 2 Parsons on Contracts, citing Miner v. Bradley, 22 Pick. (Mass.) 457; John- son v. Johnson, 3 B. & P. 162; Bigg v. Whisking, 14 C. B. 195, 78 E. C. L. 193; Jones v. Dunn, 3 W. & S. (Pa.) 109; White v. Brown, 2 Jones (N. Car.) 403; Dula -v. Cowles, 2 Jones (N. Car.) 454; Common Agent. The fact that sev. eral corporations employ a common agent does not make a contract by him in that capacity a single one; it is sev- erable. Clegg v. Aikens, 5 Abb. N. Cas. (N. Y. Supreme Ct.) 95. Separate Pieces of Property. Where the owner of several and distinct pieces of property places the same in the hands of an agent, who disposes of and receives the money for the same, the owner has as many causes of ac- tion against the agent as there are segregated pieces of property disposed of. Sweeny v. Daugherty, 23 Iowa 291. Defendant Liable in Severable Capaci- ties. The cause of action may be one and the same, although the defendant is liable thereon in several capacities. Lord v. Vreeland, 15 Abb. Pr. (N. Y. Supreme Ct.) 122, where the defendant was liable as executor and as grantee from a devisee. See also Richtmyer v. Richtmyer, 50 Barb. N. Y. 55; Aus- tin v. Munro, 47 N. Y. 360. 2. Perry v. Dickerson, 85 N. Y. 345. 3. Coe -v. Goetschins, 7 Alb. L. J. 413; Mclntosh -v. Lown, 49 Barb. (N. Y.) 550; Phillips v. Berick, 16 Johns. (N. Y.) 140; Perry v. Harrington, 2 Met. (Mass.) 368; Andrews v. Durant, ii N. Y. 35; Beach v. Grain, 2 N. Y. 86; Guernsey v. Carver, 8 Wend. 'S 2 Splitting Causes of Action. ACTIONS. Specific Contracts. All Breaches to be Sued for. But where there are breaches of several and distinct covenants contained in the same instrument, all these breaches must be sued for together ; while independent stipula- tions may be sued for as the breaches occur, all the breaches existing at the time the action is brought are only one cause of action. 1 4. Specific Contracts a. SALES. There is but one cause of action for chattels sold at one time. 2 b. ACCOUNTS. A debt due upon a continuous account of book entries, made in the ordinary course of dealing, is entire ; it can- not, without agreement to that effect, be split up into separate and distinct demands, so as to form the basis of several suits. 3 (N. Y.) 492; Stevens v. Lockwood, 13 Wend. (N. Y.) 644; Staples v. Good- rich, 21 Barb. (N. Y.) 317; Colvin v. Corwin, 15 Wend. (N. Y.)557; Dennyz/. Williams, 5 Allen (Mass.) i; Knight v. New England Worsted Co., 2 Cush. (Mass.) 271; Merchants' Ins. Co. v. Algeo, 31 Pa. St. 446; Andrew v. Schmitt, 64 Wis. 664; Breckenridge v. Lee, 3 A. K. Marsh (Ky.) 449; Griffin v. Wallace, 66 Ind. 410; Boyce v. Christy, 47 Mo. 70; Johnson v. Pirtle, i Swan (Tenn.) 262; Florence v. Jenings, 2 C.B. N. S. 454, 89 E. C. L. 454; Doe v. Woodbridge, 9 B. & C. 376, 17 E. C. L. 399; Gambrell v. Falmouth, 4 Ad. & El. 73, 31 E. C. L. 30; Steel v. Spight, 2 Roll. 178; Palmer v. Stanage, i Lev. 43; Doe v. Peck, i B. & A. 428; 20 E. C. L. 417; Welbie v. Phillips, 2 Vent. 129; Dulaney v. Payne, 101 111. 325; Wehrly v. Morfoot, 103 111. 183. 1. Bendernagle v. Cocks, 19 Wend. (N. Y.) 207; Coggins v. Bulwinkle, I E. D. Smith (N. Y.) 434; Guernsey v. Carver, 8 Wend. (N. Y.) 492; Colvin v. Corwin, 15 Wend. (N. Y.) 557; Ste- vens v. Lockwood, 13 Wend. (N. Y.) 644; Winslow v. Stokes, 3 Jones (N. Car,) 285; Hill v. Joy, 149 Pa. St. 243; McLaughlin v. Hill,6Vt. 20; Avery v. Fitch, 4 Conn. 362; Bunnel v. Pinto, 2 Conn. 431; Lane v. Cook, 3 Day (Conn.) 255; Girling v. Aldas, 2 Keb. 617; Bagot -v. Williams, 3 B. & C. 235, 10 E. C. L. 62; Rex v. Herefordshire, i B. & Ad. 672; Young v. Munby, 4 M. & S. 183, White v. Moseley, 8 Pick. (Mass.) 356; Whitaker v. Hawley, 30 Kan. 317; Whitaker v. Hawley, 25 Kan. 674; Barton County v. Plumb, 20 Kan. 147; Houston v. Delahay, 14 Kan. 125; Bond v. Weed Sewing Mach. Co., 23 Kan. 121 ; Madden v. Smith, 28 Kan. 802; Gripton v. Thompson, 32 Kan. 370; Andrews v. Alcorn, 13 Kan. 351; Ambrose -v. Parrott, 28 Kan. 693; Muzzy v. Knight, 8 Kan. 456; Ken- nion v. Kelsey, 10 Iowa 443; Stein v. Steamboat Prairie Rose, 17 Ohio St. 472; Hibbard v. McKindley, 28 111. 240; Joyce v. Moore, 10 Mo. 272; State v. Davis, 35 Mo. 406; Kansas City Hotel Co. v. Sigement, 53 Mo. 176; Fisk v. Tank, 12 Wis. 276; Roehing v. Huebschman, 35 Wis. 185; Smith v. Boston, etc., R. Co., 36 N. H. 458; Leggett v. Lippincott, 50 N. J. L. 462. 2. Smith v. Jones, 15 Johns. (N. Y.) 229; Miller v. Covert, i Wend. (N. Y.) 487; Madden v. Smith, 28 Kan. 799; Magruder v. Randolph, 77 N. Car. 79; Dutton -v. Shaw. 35 Mich. 433. Two distinct sales of lottery tickets by different agents of the plaintiff, at different places, were held an entire demand. Colvin v. Corwin, 15 Wend. (N. Y.) 557- Separate Sales. Separate and inde- pendent sales constitute separate causes of action. Cashman v. Bean, 2 Hilt. (N. Y.)340. Where the contract is that goods sold by weight shall be paid for in cash on delivery, and some goods are delivered daily, the weight being taken on each delivery, that payment was not exacted on each delivery does not compel the seller to treat the an- nual deliveries as part of one transac- tion. Stifel v. Lynch, 7 Mo. App. 326. Credit. Giving credit on the items of the sale will change the rule; a cause of action on each item arises as its credit expires. Zimmerman v. Er- hard, 83 N. Y. 74; Campbell Printing, etc., Co. v. Walker (Supreme Ct.\ 9 N. Y. St. Rep. 725; Staples v. Goodrich, 21 Barb. (N. Y.) 317. 3. Buck v. Wilson, 113 Pa. St. 430; Lucas v. Le Comte, 42 111. 303; Born- '53 Splitting Causes of Action. ACTIONS. Specific Contracts. c. INSTALMENTS. When several claims, payable at different times, arise out of the same contract or transaction, separate ac- Kirby, 53 Wis. 188 ; Rex v. Hereford- shire, i B. & Ad. 672. But there must be either an express contract, or the circumstances must be such as to raise an implied contract, embracing all the items, to make them, where they arise at different times, a single or entire demand or account. Secor v. Sturgis, 16 N. Y. 548. Probably the best test of an account is, were the dealings continuous ? Ma- gruder v. Randolph, 77 N. Car. 79; Waldo v. Jolly, 4 Jones (N. Car.) 173 ; Caldwell v. Beatty, 69 N. Car. 365. See Lucas v. Le Compte, 42 111. 303 ; Shaw v. Beers, 25 Ala. 449 ; Oliver v. Holt, II Ala. 524; Pittman v. Chrisman, 59 Miss. 124 ; Grayson v. Williams, Walker (Mis's.) 298; Ammons v. White- head, 31 Miss. 99; Ash -v. Lee, 51 Miss. 101 ; Scofield v. Pensons, 26 Miss. 402; Mobile, etc., R. Co. v. State, 51 Miss. 137- Credit. Where credit is given on some of the items of a running account, such items need not be included in a suit for other items due. McLaughlin v. Hill, 6 Vt. 20; Zimmerman v. Er- hard, 83 N. Y. 74. Separate Accounts. There may be two or more running accounts in favor of one party against another which might be the subject of separate suits. Secor v. Sturgis, 16 N. Y. 548. This case is a leading one on the subject of splitting the causes of action. The facts were that the business of ship-carpenters was car- ried on in one part of a building, under the direction of two of the partners of a firm, and the business of ship-chan- dlers in another part of the same build- ing, under the direction of a third partner. Separate books of account were kept. Work was done from the carpentry branch in repairing a brig, and goods of ship-chandlery were fur- nished to the same brig. It was held that the two accounts formed two causes of action. Corby v. Taylor, 35 Mo. 447; Beck v. Devereaux, 9 Neb. 109. But the presumption is that the ac- counts are all one. Barngesser v. Har- rison, 12 Wis. 544. See Ranney v. Higby, 12 Wis. 62. May Sue for Less. But an account is not so far treated as an entire demand that a creditor is compelled to sue for gesser v. Harrison, 12 Wis. 544; Mem- mer v. Carey, 30 Minn. 458; American Buttonhole, etc., Co. v. Thornton, 28 Minn. 418; Stevens v. Damon 29 Vt. 521; Tootle v. Wells, 39 Kan. 452; Waffle v. Short, 25 Kan. 503; Bond v. Weed Sewing Mach. Co., 23 Kan. 119; Stevens v. Lockwood, 13 Wend. (N. Y.) 644; Guernsey v. Carver, 8 Wend. (N. Y.) 492; Mclntosh v. Lown, 49 Barb. (N. Y.) 550; Erie, etc. R. Co. v. Patrick, 41 N. Y. 256; Thompson v. McDonald, 84 Ga. 5; Macon. etc., R. Co. v. Garrard, 54 Ga. 327; Evans v. Collier, 79 Ga. 319. " The demand [of the plaintiff] was composed of various items for profes- sional services, every one of which, according to his view, was a separate demand, and therefore he might bring as many separate actions as there were items in his account. This cannot be tolerated. A party is trading at a store, where he has a running account, which in the aggregate exceeds $100. Can it be, the merchant has a right to divide this demand, so as to give a court jurisdiction, which, of the entire demand, has it not? It cannot be." Per Breese, J. , in Lucas v. Le Compte, 42 111. 303. What Constitutes an Account. It seems that the term account has no very clearly defined legal meaning. The primary idea conveyed by it is some matter of debt, or a demand in the na- ture of a debt, arising out of contract. Thus rent after it is due is the subject of an account. Watson v. Penn, 108 Ind. 25 ; Nelson v. Posey County, 105 Ind. 287. An itemized claim by a county clerk for extra services is an account. Nel- son v. Posey County, 105 Ind. 287. But it must be continuous. An inter- ruption of two years between items was held to deprive the items of the quality of an account. Tucker v. Quimby, 37 Iowa 18. It has been held that a " running account " must consist of items on both sides. Leonard v. U. S., 18 Ct. of Cl. 385. See Oliver v. Holt, II Ala. 574; Bartels v. Schell, 16 Fed. Rep. 341 ; Hennequin v. Barney, 24 Fed. Rep. 580; Baird v. U. S., 96 U. S. 430 ; Pin- ney v. Barnes, 17 Conn. 420; Bunnel v. Pinto, 2 Conn. 433; Kansas City Hotel Co. v. Sigement, 53 Mo. 176; Butler v. Splitting Causes of Action. ACTIONS. Specific Contracts. tions can be brought as each liability accrues. 1 Yet, if no action is brought until more than one is due, all that are due must be in- cluded in one action ; and if an action is brought when more than one is due, a recovery in that suit will be an effectual bar to a second action, brought to recover the other claims that were due when the first was brought. 2 d. RENT. Instalments of rent are subject to the same rule as are other instalments of money due. An action may be brought as each instalment falls due, but all instalments due are but one cause of action. 3 the whole of it against his wishes. He may sue for a part, but of course this bars a recovery on the residue. Corey v. Miller, 12 R. I. 337; Guernsey v. Carver, 8 Wend. (N. Y.) 492 ; Bender- nagle v. Cocks, 19 Wend. (N. Y.) 207 ; Barngesser v. Harrison, 12 Wis. 544. Massachusetts. In Massachusetts it is held that a running account for goods sold, money lent, or money paid at dif- ferent times is not an entire demand incapable of being divided for the pur- pose of bringing separate suits, unless there be an agreement to that effect. Badger z/.Titcomb, 15 Pick. (Mass.) 409. But see this case severely criticised in Barngesser v. Harrison, 12 Wis. 611. North Carolina. In North Carolina an account may be split for the pur- pose of giving jurisdiction to a justice of the peace. Caldwell v. Beatty, 69 N. Car. 365. See also Waldo v. Jolly, 4 Jones (N. Car.) 173; McCasten v. Quinn, 4 Ired. (N. Car.) 43 ; Green v. Caldcleugh, i Dev. & B. (N. Car.) 320; Person v. State Bank, 4 Hawks (N. Car.) 295 ; Buie v. Kelly, 7 Jones (N. Car.) 266; Boyle v. Robbins, 71 N. Car. 130; Kearns v. Heitman, 104 N. Car. 332. 1. Reformed, etc., Church v. Brown, 54 Barb. (N. Y.) 191; Sterner v. Gower, 3 W. & S. (Pa.) 136 ; Miller v. Union Switch, etc., Co. (Supreme Ct.), 13 N. Y. Supp. 711; Stowell v. Chamberlain, 60 N. Y. 272; Gardner v. Patten (C. PI.), 15 N. Y. Supp. 324: Union R., etc., Co. v. Traube, 59 Mo. 355; Ryall v. Prince, 82 Ala. 264; Wilkinson v. Black, 80 Ala. 329; Strauss v. Meertief, 64 Ala. 299; Davis v. Preston, 6 Ala. 83; Robbins v. Harrison, 31 Ala. 160; Herrin v. Buckelew, 37 Ala. 585; Oliver v. Holt, n Ala. 574. With respect to instalments of money due at successive days under the same contract, a difference was taken at early common law, that if the action were debt, it must be brought for the whole. Rudder v. Price, i H. Bl. 556; Badger v. Titcomb, 15 Pick. (Mass.)4i5, But if it were covenant or assumpsit, the action might be for each instalment as it fell due. Cooke v. Whorwood, 2 Saund. 337; Ashford v. Hand, Andr. 370; Badger z/. Tit- comb, 15 Pick. (Mass.) 419. Assignment. An assignee, under separate and distinct assignments of different instalments of royalties, for distinct periods of time, under a con- tract, may maintain separate actions for such separate instalments. Miller v. Union Switch, etc., Co. (Supreme Ct.), 13 N. Y. Supp. 711. 2. Reformed, etc., Church v. Brown, 54 Barb. (N. Y.) 191; Union R., etc., Co. v. Traube, 59 Mo. 355; Nickerson v. Rockwell, 90 111. 460. Contra. Sterner v. Gower, 3 W. & S. (Pa.) 136. Divisible Contract. The rule that all instalments of money due upon a con- tract must be embraced in one suit is not applicable where there has been an adjudication in a prior action be- tween the same parties on the same contract, to the effect that the contract is divisible in respect to the several instalments. Lorillard v. Clyde, 122 N. Y. 41. See Beach v. Grain, 2 N. Y. 86. 3. Love -v. Waltz, 7 Cal. 250; Under- hill v. Collins (Supreme Ct.), 39 N. Y. St. Rep. 795; Smiths. Dittenhoefer, i Rob. C. C. (N. Y.) 143; Hopf v. Myers, 42 Barb. (N. Y.) 270; Jex v. Jacob, 19 Hun (N. Y.) 105 ; Reformed, etc., Church v. Brown, 54 Barb. (N. Y.) 191 ; Warren v. Comings, 6 Cush. (Mass.) 103; Jarrett v. Self, 90 N. Car. 478; Caldwell v. Beatty, 69 N. Car. 365; Boyle v. Robbins, 71 N. Car. 130; Cooke v. Whorwood, 2 Saund. 337 ; Ashford V. Hand, Andr. 370; Burritt v. Belfy, 47 Conn. 323 ; Moore v. Nowell, 94 N. Car. 265; Magruder v. Randolph, 77 155 Splitting Causes of Action. ACTIONS, Specific Contracts. e. NOTES. Each separate promissory note constitutes a cause of action. Where several notes are given at one time and as part of the same transaction, they may be sued on separately. There is no obligation on the holder to include in one suit all the notes due. 1 /. JUDGMENTS. A judgment is a contract, within the meaning of the rule against splitting a cause of action. If suit is brought upon it, it must include all that is due thereon, including costs.* N. Car. 79; Shepherd v. Willis, 19 Ohio 147; Thayer v. Brooks, 17 Ohio 489 ; Lucas v. Le Compte, 42 111. 303; Rosenmueller v. Lampe, 89 111. 212; Nickerson v, Rockwell, 90 111. 460; Cas- selberry v. Farquer, 27 111. 170. A recovery of double rent, under the terms of the lease, for holding over one month is a bar to a recovery, under the same covenant, for a second month. Kerr v. Simmons, 9 Mo. App. 376. But where four suits were instituted simultaneously for instalments of rent, and were practically tried as one, and the defendant made no objection to their severance, he was held to have waived the objection. Fox v. Althorp, 40 Ohio St. 322. See Schu- richt v. Broadwell, 4 Mo. App. 160. Separate Leases. But where the rent- ing takes place under separate leases, as where a lease expires and a new one is made, the rents due under the two leases are separate causes of action. McLendon v. Pass, 66 Miss, no. See Graysonz/. Williams, Walker (Miss.) 298; Ash v. Lee, 51 Miss. 101; Pittman v. Chrisman, 59 Miss. 124; Mobile, etc., R. Co. v. State, 51 Miss. 137- Illinois. In Illinois it is held that where a lease provides for the pay- ment of a given sum annually, sepa- rate actions may be brought upon the lease for each year's rent; and if, when suit is brought for one year's rent, the rent on the following year is then due, a judgment for the first is no bar to a second action for the rent of the sub- sequent year. McDole v. McDole, 106 111. 452. Compare Dulaney v. Payne, 101 111. 325; Wehrly v. Mar- foot, 103 111. 185. 1. Williams v. Kitchen, 40 Mo. App. 604 ; Nathans v. Hope, 77 N. Y. 420 ; Eastman v. Cooper, 15 Pick. (Mass.) 276 ; Perry v. Harrington, 2 Met. (Mass.) 368 ; Grouse v. Holman, 19 Ind. 30 ; Bliss v. Weil, 14 Wis. 38. The holder of a note cannot split it to give jurisdiction to a justice. Wil- lard v. Sperry, 16 Johns. (N. Y.) 121. But see Conklin v. Field, 37 How. Pr. (N. Y.) 455, where it was held that the fact that a party has sued for a part of a promissory note and recovered, supposing at the time that the remain- der had been paid, does not preclude him afterwards, on discovering that the remainder has not been paid, from maintaining an action to recover it. 2. Camp v. Morgan, 21 III. 255 ; Ross v. Weber, 26 111. 221 ; Clayes v. White, 83 111. 540. A judgment which charges an an- nuity on land is severable, and an action may be brought on each instal- ment. Priest v. Deaver, 22 Mo. App. 276. Creditor's Bill. A creditor's bill only states one cause of action, although seeking relief on two judgments. Ja- cot v. Boyle, 18 How. Pr. (N. Y. Su- preme Ct.) 106. Error in Entry A judgment is so far entire that an error in entering up the proper amount due, and the omission of items in it, bars a suit on such items. Town v. Smith, 14 Mich. 347. Assignment. A judgment is inca- pable of being divided by assignment. Hopkins v. Stockdale, 117 Pa. St. 365. And when a judgment has been as- signed to several persons, each owner of a part thereof cannot have his sep- arate set. fa. to revive. Dietrich's Ap- peal, 107 Pa. St. 175. Hopkins v. Stockdale, 117 Pa. St. 365 ; Arrison v. Com., I Watts Pa. 374. Compare Pe- terson v. Lothrop, 34 Pa. St. 223, where the judgment was conditioned for the payment of different sums to different persons at different times. But see Eldred v. Hazelett, 38 Pa. St. 16, where it is held that the revival of a judgment by scire facias is but a continuation of it, and is a distinct action in form only. Under this rul- ing there would appear to be no ob- jection to allowing a part owner to revive. '56 Splitting Causes of Action. ACTIONS. Specific Contracts. g. SERVICES. There can be no recovery in two suits for ser- vices of the same character, rendered within the same period of time 1 . Servant Wrongfully Discharged. A judgment in an action of dam- ages for wrongful discharge from employment before the ex- piration of the term of servioe is not a bar to a subsequent action for wages earned and due before the discharge. 2 h. INSURANCE POLICIES. There can be no splitting of causes of action on a single insurance policy. Whoever sues must be able to enforce the whole of it. 3 i. INTEREST. The promise to pay interest is a distinct cause 1. Green v. Von der Ahe, 36 Mo. App. 394- Where a party was employed by the trustees of a church to perform certain services for one year for a fixed com- pensation, and afterwards performed similar services in the next year at the request of the priest, on the promise of the same compensation, it was held that there was only one cause of action for all the services so rendered. Ro- senmueller v. Lampe, 89 111. 212. Distinct Contracts. But services per- formed at different times under dis- tinct contracts are separate causes of action. Phillips v. Berick, 16 Johns. (N. Y.) 136. 2. Perry v. Dickerson, 85 N. Y. 345 ; Butler v. Rice, 17 Hun (N. Y.) 406 ; Hartley v. Harman, n Ad. & El. 798, 39 E. C. L. 231. Compare Goodman v. Pocock, 15 Q. B. 576, 69 E. C. L. 574 ; Brodar v. Lord, 46 N. Y. Super. Ct. 205 ; Col- burn v. Woodworth, 31 Barb. (N. Y.) 381 ; Howard v. Daly, 61 N. Y. 362 ; Booze v. Pacific R. Co., 33 Mo. 212 ; Soursin v. Salorgne, 14 Mo. App. 486. Wages Paid. But where an employe engaged under a contract for a speci- fied time, the wages being payable in instalments, is wrongfully discharged before the expiration of the period of hire, and all wages actually earned at the time of the discharge have been paid, an action will not lie to recover the future instalments, the remedy is an action for the wrongful discharge. James v. Allen County, 44 Ohio St. 226; Moody v. Leverick, 14 Abb. Pr. N. S. (N. Y. C. PI.) 145 ; Moody v. Leverick, 4 Daly (N. Y.)4Oi ; Howard v. Daly, 61 N. Y. 362 ; Archard v. Hornor, 3 C. & P. 349, 14 E. C. L. 342 ; Smith v. Hayward, 7 Ad. & El. 544, 34 E. C. L. 154 ; Goodman v. Po- cock, 15 Q. B. 576; 69 E. C. L. 574; Beckham v. Drake, 2 H. L. Cas. 606 ; Emmens v. Elderton, 4 H. L. Cas. 624 ; Clossman v. Lacoste, 28 Eng. L. & Eq. 140 ; Chamberlin v. Morgan, 68 Pa. St. 168 ; Willoughby v. Thomas, 24 Gratt. (Va.) 522; Whitaker v. Sandifer, i Duv. (Ky.) 261 ; Chamberlin v. McCalis- ter, 6 Dana (Ky.) 352 ; Miller v. God- dard, 34 Me. 102. Contra. The servant, under the doc- rine of "constructive service," may hold himself in readiness to perform, and recover his instalments of wages as they fall due. Gandell v. Pontigny, 4 Camp. 375 ; Hartley v. Harman, n Ad. & El. 498, 39 E. C. L. 231 ; Cut- ter v. Powell, 2 Smith's Leading Cas. part i ; Huntington v. Ogdensburgh, etc., R. Co., 7 Amer. Law Reg. N. S. 143 ; Thompson -v. Wood, i Hilt. (N. Y.) 96 ; Heim v. Wolf, i E. D. Smith (N. Y.) 70 ; Strauss v. Meertief, 64 Ala. 299 ; Davis v. Ayres, 9 Ala. 292 ; Ramey v. Holcombe, 21 Ala. 567 ; Fowler v. Armour, 24 Ala. 194 ; Davis v. Preston, 6 Ala. 83 ; Hamlin z/.Race, 78 111. 422 ; Armfield v. Nash, 31 Miss. 361. 3. Hartford F. Ins. Co. v. Daven- port, 37 Mich. 609. In Equity. But where each of sev- eral persons assured by the same policy have distinct insurable inter- ests, they can enforce their rights under the policy in equity if they can- not at law. Mercantile Ins. Co. v. Hol- thaus, 43 Mich. 423; Watertown F. Ins. Co. v. Grover, etc., Sewing Mach. Co. 41 Mich. 131; Fire Ins. Co. v. Felrath, 77 Ala. 194 ; North Western Mut. L. Ins. Co. v. Germania F. Ins. Co. 40 Wis. 446; Hammil v. Queen Ins. Co., 50 Wis. 240.; State Ins. Co. v. Maack- ens, 38 N. J. L. 564; Stearns v. Quincy Mut. F. Ins. Co., 124 Mass. 64; Thatch v. Metropole Ins. Co., n Fed. Rep. 29. '57 Splitting Causes of Action. ACTIONS. Specific Contracts. of action from the promise to pay the principal. Each promise constitutes a distinct cause of action. 1 j. ASSIGNMENTS. A cause of action arising upon a contract which is an entirety cannot be severed by means of partial assign- ments.* k. COLLATERAL SECURITIES. Where a suit is brought on col- lateral securities, this does not preclude one on the obligation itself. The collateral security constitutes a different contract from the debt itself. 3 1. FRAUD. Where there is fraud practiced in obtaining a contract, there are two causes of action, one for the fraud and one on the contract. 4 1. Dulaney v. Payne, 101 111. 325; Walker v. Kimball, 22 111. 537; Good- win v. Goodwin, 65 111. 497; Wehrly v. Morfoot, 103 111. 183; Andover Bank v. Adams, i Allen (Mass.) 28; Sparhawk z/. Wills, 6 Gray (Mass.) 163. Instalments Due. But after the prin- cipal becomes due, the unpaid instal- ments of interest become merged in the principal, and must be sued for if the principal is. Parsons on Con., vol. 2, 636. Howe -v. Bradley, 19 Me. 31; Matthias v. Cook, 31 111. 83. 2. Chicago R. Co. v. Nichols, 57 111. 464; Potter v. Groubeck, 117 111. 404; German F. Ins. Co. v. Bullene, 51 Kan. 764; Dolbeer v. Stout (Super. Ct.), 19 N. Y. Supp. 820; Gardner v. Patten (C. PL), 15 N, Y. Supp. 324; Mills v. Garrison, 42 N. Y. 40. Compare Mandeville v. Welch, 5 Wheat. (U. S.) 277; Thatch v. Metro- pole Ins. Co., ii Fed. Rep. 29; Stearns v. Quincy Mut. F. Ins. Co., 124 Mass. 64; Fire Ins. Co. v. Felrath, 77 Ala. 194; Hartford F. Ins. Co. v. Daven- port, 37 Mich. 609. Subrogation. Where an insurance company, on payment of a portion of the loss sustained by reason of the destruction of the insured property, caused, as claimed by the insured, by the negligence of a third person, is subrogated to a proportionate amount of the claim of the insured against said third person, the company cannot maintain an action to recover the por- tion of the claim covered by the sub- rogation. Continental Ins. Co. v. Loud & Sons' Lumber Co., 93 Mich. 139- Parties. A complaint on an assign- ment of part of an entire demand should make the other holders parties, and if not it is demurrable for want of parties. Grain v. Aldrich, 38 Cal. 514. See Hassie v. G. I. W. U. Congrega- tion, 35 Cal. 378; Thomas v. Rock Island, etc., Co., 54 Cal. 578. Who Can Object. While the creditor has not a right to assign the debt in parcels, still no person but the debtor can object. Marzion v. Pioche, 8 Cal. 3. Drake v. Mitchell, 3 East 251; Sykes v. Gerber, 98 Pa. St. 179; White v. Smith, 33 Pa. 186; McCul- lough v. Hellman, 8 Oregon, 192; Fisher v. Fisher, 98 Mass. 303; Howell v. McCracken, 87 N. Car. 399; Fair- child v. Holly, 10 Conn. 474. The agreement to procure an in- dorser is a different contract from the note itself. Vanuxem v. Burr, 151 Mass. 386. Where the creditor consumes the goods given as collateral security, this constitutes a defense to an action on the debt; but if the debtor sets this up in an action on the debt, he is pre- cluded from suing the creditor for the goods so consumed. Simes v. Zane, 24 Pa. St. 242. Liens. But the lien for a debt is a part of it. Kittridge v. Stevens, 16 Cal. 381. See Gray v. Dougherty, 25 Cal. 266; Bacon -v. Raybauld, 4 Utah 357- The right to foreclose a mortgage and the causes of action for instal- ments of interest are separate. Pope v. Durant, 26 Iowa 233. Guaranty. Where a guarantor is liable, under his contract, for attor- ney's fees, they must be included in the action on the guaranty. Abbott v. Brown, 131 111. 108. 4. Morgan v. Skidmore, 3 Abb. N.Cas. (N. Y. Ct. App.) 92; Goldberg v. Dough- erty, 39 N. Y. Super. Ct. 189; Calkins v. Smith, 48 N. Y. 614 ; Bruce v. Kelly, 58 Splitting Causes of Action. ACTIONS. Torts. 5. Torts A single wrong gives only one cause of action, no matter how numerous the items of damage may be. Damages resulting from one and the same cause of action must be assessed and re- covered once for all. 1 While the principle is well settled, the great difficulty consists in its application, for the same wrongful act may give rise to two or more causes of action. 3 5 Hun (N. Y.) 229; Lattin v. McCarty, 41 N. Y. 107 ; Morgan v. Powers, 66 Barb. (N. Y.) 35; Gutchess v. Whiting, 46 Barb. (N. Y.) 139 ; Wanzer v. De Baun, i E. D. Smith (N. Y.) 291; Paige v. Wilson, 8 Bosw. (N. Y.) 294. 1. Brunsden v. Humphrey, 14 Q. B. Div. 141; Secor v. Sturgis, i6N. Y. 548; Filer v. New York Cent. R. Co., 49 N. Y. 42 ; Porter v. Cobb, 22 Hun (N. Y.) 278; Law v. McDonald, 62 How. Pr. (N. Y. Supreme Ct.) 340 ; Wichita, etc., R. Co. v. Beebe, 39 Kan. 465; Whitaker v. Hawley, 30 Kan. 317; Saline County v. Bondi, 23 Kan. 119; Madden v. Smith, 28 Kan. 798 ; Brannenburg v. Indian- apolis, etc., R. Co., 13 Ind. 103; Lafay- ette v. Nagle, 113 Ind. 425 ; Folsom v. Clemence, 119 Mass. 473 ; Warren v. Comings, 6 Cush. (Mass.) 103; Marble v. Keyes, 9 Gray (Mass.) 221; Bennett v. Hood, i Allen (Mass.) 47 ; Trask v. Hartford, etc., R. Co., 2 Allen (Mass.) 33; Knowlton v. New York, etc., R. Co., 147 Mass. 606; Hempstead v. Des Moines, 63 Iowa 36; Herriter v. Porter, 23 Cal. 385 ; Morey v. King, 51 Vt. 383; Whitney v. Clarendon, 18 Vt. 253; Mil- roy v. Spurr Mt. Iron Min. Co., 43 Mich. 231; Thompson v. Ellsworth, 39 Mich. 719; South & North Ala. R. Co. i>. Henlein, 56 Ala. 368 ; Pierro v. St. Paul, etc., R. Co., 3gMinn. 451; Hite v. Long, 6 Rand. (Va.) 457; Pucket v. St. Louis, etc., R. Co., 25 Mo. App. 650; Steiglider v. Missouri Pac. R. Co., 38 Mo. App. 511; Baird v, U. S., 96 U. S. 430. Compare Burrell v. New York, etc., Salt Co., 14 Mich. 34; Sheahan v. Barry, 27 Mich. 217; Allison v. Chan- dler, ii Mich. 542; Scripps v. Reilly, 38 Mich. 10; Tefft v. Windsor, 17 Mich. 486; Ferrer's Case, 6 Coke 9; Sparry's Case, 5 Coke 61 ; Higgins' Case, 6 Coke 45 ; Hudson v. Lee, 4 Coke 43; Bird v. Ran- dall, 3 Burr. 1345 ; Phillips z>. Berryman, 3 Dougl. 287; Hitchin v. Campbell, 2 W. Bl. 827; Martin v. Kennedy, 2 B. & P. 71 ; Seddon v. Tutop, 6 T. R. 607 ; Thorpe v. Cooper, 5 Bing. 116, 15 E. C. L. 387; Fetter v. Beale, i Ld. Raym. 339 ; Embrey v. Owen, 6 Exch. 353 ; Williams v. Morland, 2 B. & C. 910, 9 E. C. L. 269 ; Fay v. Prentice, i C. B. 835, 50 E. C. L. 834; Nelson v. Couch, 15 C. B. (N. S.) 99, 109 E. C. L. 99; Hodsoll v. Stallebrass, 11 Ad. & El. 301, 39 E. C. L. 94 ; Lamb v. Walker, 3 Q. B. Div. 389. A single act can only give a single cause of action, even when it is of such a nature that it may be treated either as a breach of contract or a duty imposed by law. Fern v. Vanderbilt, 13 Abb. Pr. (N. Y. Supreme Ct.) 72. See Smith v. Way, 9 Allen (Mass.) 472; Bennett v. Hood, i Allen (Mass.) 47 ; Eastman v. Cooper, 15 Pick. (Mass.) 285; Norton v. Doherty, 3 Gray (Mass.) 372 ; Burnett v. Smith, 4 Gray (Mass.) 50; Warren v. Comings, 6 Cush. (Mass.) 103. But the same tort may give causes of action to different persons. Tay- lor -v. Manhattan R. Co. (Supreme Ct.), 6 N. Y. Supp. 488 ; Wilton v. Mid- dlesex R. Co., 125 Mass. 130 ; Karr v. Parks. 44 Cal. 46; Bradley v. Andrews, 51 Vt. 525. Compare McReynolds v. Kansas City, etc., R. Co., 34 Mo. App. 58i. 2. The Test to be Applied to determine whether there is more than one cause of action, where damages have been in- flicted by one wrongful act, is, is the injury occasioned an infringement of different rights? If it is, there areas many rights of action as separate rights infringed. Brunsden v. Hum- phrey, 14 Q. B. Div. 141. The above case is a leading one. The plaintiff brought an action in a county court for damage to his cab occasioned by the negligence of the de- fendant's servant, and, having recov- ered the amount claimed, afterwards brought an action in the High Court of justice against the defendant, claiming damages for personal injury sustained by the plaintiff through the same neg- ligence. Held, by Brett, M.R., and Bowen, L.J., that the action in the High Court was maintainable, and was not barred by the previous proceeding Splitting Causes of Action. ACTIONS. Torts. But, as a general rule, it may be said that if separate rights are not infringed, a single tortious act, or a series of them all done at one time, constitute only one cause of action. 1 Fraud. A fraud cannot be separated into two causes of action ; it is an entirety. 2 in the county court. Lord Coleridge dissented. In his dissenting opinion he used this language : " But it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions- if he is injured in his arm and in his leg, but can bring two if besides his arm and leg being injured his trousers, which contain his leg, and his coat-sleeve, which contains his arm, have been torn. The consequences of holding this are so serious and may be very properly so oppressive that I at last must respectfully dissent f rom a judgment which establishes it." See the case of Howe v. Peckham, 10 Barb. (N. Y.) 656, which recognizes the distinction between the infringe- ment of separate rights by one wrong- ful act. It holds that where an injury has resulted both to the person and the property of another, from an act of negligence on the part of the defend- ant, both causes of action may be joined in the same complaint. 1. Where two detached lots of woodland were destroyed by fire from a locomotive, there was held only one cause of action. Knowlton v. New York, etc., R. Co., 147 Mass. 606. And all buildings burnt by one negli- gent fire must be included in one ac- tion. Trask v. Hartford, etc., R. Co., 2 Allen (Mass.) 331. Where two horses are killed by the same negligent act, the recovery for one bars recovery for other. Brannen- burg v. Indianapolis, etc., R. Co., 13 Ind. 103. But where two horses go upon a railroad track, and one is killed at a distance of 30 rods from where the other was, as the railroad might not have been guilty of negligence in kill- ing one, and yet might have been with reference to the other, the suit for the value of one horse does not bar that for the value of the other. Mis- souri Pac. R. Co. v. Scammon,4i Kan. 521. See Folsom v. Clemence, 119 Mass. 473 ; Goodrich v. Yale, 8 Allen (Mass.) 454; Perley v. Eastern R. Co., 98 Mass. 414; Warner v. Bacon, 8 Gray (Mass.) 397. Illegal Discrimination by Common Car- rier. A series of illegal discrimina- tions by a common carrier at different times against a shipper of goods con- stitutes but one cause of action. Lang- don v. New York, etc., R. Co., 27 Abb. N. Cas. (N. Y. Supreme Ct.) 166. Same Transaction. But the mere fact that only one transaction took place does not necessarily give only one cause of action. Thus the recov- ery by the passenger of the statutory penalty for an illegal overcharge of fare is no bar to a suit for damages for an unlawful ejection from the train. St. Louis R. Co. v. Trimble, 54 Ark. 354. And a recovery in an action for the hire of a horse, buggy, and harness is not a bar to another action to re- cover damages for injuries done to the buggy and harness while in the pos- session of the bailee. Shaw v. Beers, 25 Ala. 449. See also Oliver v. Holt, ii Ala. 574; O'Neal v. Brown, 21 Ala. 482; Lenoir v. Wilson, 36 Ala. 600; Hyde v. Noble, 13 N. H. 494; Green- field v. Wilson, 13 Gray (Mass.) 384; Jones v. Oswald, 2 Bailey (S. Car.) 214 2. Allison v. Connor, 36 Mich. 283. A misrepresentation by the purchaser of a horse, as to the balance due on a promissory note transferred by him to the seller in part payment of the price, is a single and entire cause of action. Berringer v. Payne, 68 Ala. 154. Creditor's Bill. A creditor's bill can be filed against several persons rela- tive to matters of the same nature, forming a connected series of acts, all intended to defraud and injure the plaintiff, in which all the defendants were more or less concerned, though not jointly in each act; in such a case there is only a single cause of action. Graves v. Corbin, 132 U. S. 571; Ayers v. Chicago, 101 U. S. 184; Fidelity Ins. Co. v. Huntington, 117 U. S. 280; Louisville R. Co. v. Ide, 114 U. S. 52; Putnam v. Ingraham, 114 U. S. 57; Pirie v. Tvedt, 115 U. S. 41; Starin v. New York City, 115 U. S. 248; Sloane v. Anderson, 117 U. S. 275; 1 60 Splitting Causes of Action. ACTIONS. Torts. Seizing and Converting Chattels. Where a tort is committed by the taking at one time of several chattels, it gives but one cause of action, and the plaintiff cannot be allowed to split it and bring separate suits for separate articles. 1 Trespass. All acts done by the same trespass are indivisible. They must all be included in one action. 8 Assault and Battery- Each assault and battery constitutes a distinct cause of action. 3 Plymouth Min. Co. v. Canador Canal Co., 118 U. S. 264; Little v. Giles, 118 U. S. 596; East Tennessee, etc., R. Co. v. Grayson, 119 U. S. 240; Brooks v. Clark, 119 U. S. 502; Laidly v. Hunt- ington, 121 U. S. 179; Peninsula Iron Co. v. Stone, 121 U. S. 631; Thorn Wire Hedge Co. v. Fuller, 122 U. S. 535; Young v. Parker, 132 U. S. 267; Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139; Fellows v. Fellows, 4 Cow. (N. Y.) 682; New York, etc., R. Co. v. Schuyler, 17 N. Y. 592. Distinct Frauds. But separate and distinct frauds give separate actions. Thus where separate and distinct pur- chases are fraudulently made on differ- ent days, a separate cause of action accrues to the seller for the damages, as each purchase is an independent act of fraud. Lee v. Kendall, 56 Hun 610. And the embezzling of separate sums by a bank cashier constitutes separate causes of action. Phillips v. Bossard, 35 Fed. Rep 99; Shook v. Lyon (C. PI.), 34 N. Y. St. Rep. 19. Compare Gordon v. Hostetter, 37 N. Y. 39; Storm v. Livingston, 6 Johns. (N. Y.) 44; Eddy v. Smith, 13 Wend. (N. Y.) 488; Garr v. Martin, 20 N. Y. 306; Byrnes v. Byrnes, 102 N. Y. 4. 1. Farrington v. Payne, 15 Johns. (N. Y.) 432; Draper v. Stowneval, 38 N. Y. 219; Herriter v. Porter, 23 Cal. 385; Cunningham v. Harris, 5 Cal. 81; The Kalamazoo, 9 Eng. L. & Eq. 558; Marble v. Keyes, 9 Gray (Mass.) 221; Folsom v. Clemence, 119 Mass. 473; Bennett v. Hood, I Allen (Mass.) 47; Trask v. Hartford, etc., R. Co., 2 Allen (Mass.) 331. Trespass. Where the taking of chat- tels is part of a trespass on land, both the taking and trespass are only one cause of action. Johnson v. Smith, 8 Johns. (N. Y.) 383. But see Savage v. French, 13 111. App. 17, where it is held that break- ing into a house and taking goods may at the election of the owner con- stitute two causes of action. Possessed in Different Capacities. The rule against bringing separate actions for separate articles obtains although the plaintiff was possessed of some in his own right and some in his right as trustee. Bringing suit as trustee for some of the chattels bars an individual suit for others. O'Neal v. Brown, 21 Ala. 482. Fraud by Defendant. Although the plaintiff was prevented from including some of the chattels by the fraudu- lent acts of the defendant, still he can- not recover their value. McCaffrey z/. Carter, 125 Mass. 330. Contra, Moran v. Plankinton, 64 Mo. 337. Replevin and Trover. Where several articles are wrongfully taken in one act, the plaintiff cannot split the cause of action so as to sue for a part of them in replevin, and retain his right of action in trover for the residue. Funk v. Funk, 35 Mo. App. 246. See Moran v. Plankinton, 64 Mo. 337; Stevens v. Tuite, 104 Mass. 328; Ben- nett v. Hood, i Allen (Mass.) 47. But an action of replevin against one for chattels does not bar replevin against another for the same chattels. Turner v. Brock, 6 Heisk. (Tenn.)so. 2. Goodrich v. Yale, 8 Allen (Mass.) 454; Dick v. Webster, 6 Wis. 481; Hempsteadf. Des Moines, 63 Iowa 36. Trespassing of Cattle. Where a tres- pass is continuous, as in the trespass of cattle upon land day after day, there is only one cause of action, either with respect to the means by which the trespass was committed, or as regards the time of its commission. De La Guerra v. Newhall, 53 Cal. 141. But a judgment in action for the trespassing of cattle is not a bar to a subsequent action for similar trespasses occurring prior to those alleged in the former action. De La Guerra v. Newhall, 55 Cal. 21. Distinct Trespasses. But where the trespasses are distinct there are sepa- rate causes of action. White v. Mose- ley, 8 Pick. (Mass.) 356; Bendernagle v. Cocks, 19 Wend. (N. Y.) 207. 3. Adams v. Haffards, 20 Pick, I Encvc. PI. & Pr. II. 161 Splitting Causes of Action. ACTIONS. Frauds and Concealment. Slander, Malicious Prosecution, and False Imprisonment. Every publication of slander is a new and distinct injury. 1 A slander may be perpetrated by means of a malicious suit. In such case the party injured may at his option prosecute for either slander or malicious prosecution, but they are only one cause of action, and a recovery in one form bars the other. 2 Every continuation of an illegal imprisonment is a new trespass. 3 6. Claims with Reference to Real Property. Claims for the recov- ery of land and rents are separate causes of action. 4 Ejectment. The law encourages the owner to recover all the par- cels of his land in one ejectment suit. 5 Specific Performance. One cause of action for specific performance cannot be split into several actions against grantees of the vendor. 6 Waste. Different acts of waste constitute different causes of action. 7 7. Fraud and Concealment by Defendant. A fraudulent conceal- ment of a cause of action by the defendant will justify the plaintiff in splitting it. 8 (Mass.) 127. The same quarrel may give a cause of action to each combat- ant. Cade v. McFarland, 48 Vt. 48. 1. Woods -v. Pangburn, 75 N. Y. 495; Thomas v. Rumsey, 6 Johns. (N.Y.)3i; Rockwell v. Brown, 36 N. Y. 207. Partners. A joint judgment pro- cured by partners in business in a slander suit is no bar to a separate suit by one of the partners on the same cause of action. Duffy v. Gray, 52 Mo. 528. 2. Sheldon v. Carpenter, 4 N. Y. 578; Jarnigan v. Flemming, 43 Miss. 710; Tidwell v. Witherspoon,2i Fla.35g. But a judgment in an action for ma- licious prosecution is not a bar to an action for slander for words uttered on a subsequent occasion, although al- luding to the same general accusation. Rockwell v. Brown, 36 N. Y. 207; Woods v. Pangburn, 75 N. Y. 495. 3. Leland v. Marsh, 16 Mass. 389. Malicious prosecution and false im- prisonment are only one cause of ac- tion when they both relate to the issu- ance of the same warrant. Boeger v. Langenberg, 97 Mo. 390. 4. Walker v. Mitchell, 18 B. Mon. (Ky.) 541; Burr v. Woodrow, i Bush (Ky.) 602. But a judgment for damages in an action of ejectment is a bar to a suit for rents received prior to such judgment. Stewart v. Dent, 24 Mo. in. And a recovery for use and occupa- tion in ejectment bars an action for injury to the real estate during the period of occupation. Pierro v. St. Paul, etc., R. Co., 37 Minn. 314. Georgia. A recovery in ejectment bars an action for rents and profits. Cunningham v. Morris, 19 Ga. 583. 5. Bryan v. Spivey, 106 N. Car. 95. See Thames v. Jones, 97 N. Car. 121; Love -v. Wilbourn, 5 Ired. (N. Car.) 344; Doe v. South, 10 Ired. (N. Car.) 237. Where several tracts of land are prayed for in the same ejectment suit, recovery of one bars claims for the others. Woodin v. demons, 32 Iowa 280; Thompson v. McKay, 41 Cal. 221. Forcible Entry and Detainer. The is- sue embraced in a suit for the forcible entry and detainer of certain premises cannot be retried after judgment, be- cause the subsequent suit may em- brace premises not included in the first. Harvie v. Turner, 46 Mo. 444. 6. Agard v. Valencia, 39 Cal. 292. And an entire contract to convey land cannot be so divided that a party can be compelled 'by specific perform- ance to convey different parcels to dif- erent persons or at different times. Stone v. Pratt, 25 111. 16. A judgment in an action at law upon a covenant will not bar a suit for spe- cific performance, although the same covenant was assigned in the action at law. Givens v. Peake, i Dana (Ky.) 225. 7. Rutherford v. Aiken, 2 Thomp. & C. (N. Y.)28i. 8. Johnson v. Provincial Ins. Co., 12 Mich. 216. 162 Joinder at Common Law. ACTIONS. Common Law States. VII. JOINDER OF ACTIONS AT COMMON LAW 1. Common-Law States. Seventeen States, the District of Columbia, and one Ter- ritory have not adopted what is technically termed the Reformed American Procedure. But most of these States have more or less legislated on pleading and practice, while some have practice acts, based more or less on the common law. 1 Where it is not known at the time the first action is commenced that the defendants have possession of other property of the plaintiff than that sought to be recovered in that action, a second action may be brought for such additional property. Risley v. Squire, 53 Barb. (N. Y.) 280; Moran v. Plankinton, 64 Mo. 337; Bennett v. Hood, I Allen (Mass.) 47. The rule prohibiting a multiplicity of suits has no reference to a case where the party has no knowledge of his means of redress. Moran v. Plank- inton, 64 Mo. 337. In the case of U. S. v. Throck- morton, 98 U. S. 66, Mr. Justice Mil- ler uses this language: " But there is an admitted exception to this general rule in cases where, by reason of something done by the successful par- ty to a suit, there was in fact no ad- versary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from ex- hibiting fully his case, by fraud or de- ception practised on him by his op- ponent, . . . these are reasons for which a new trial suit may be sus- tained to set aside and annul the for- mer judgment or decree, and open the case for a new and fair hearing." Compare Pearce v. Olney, 20 Conn. 544; Wierich v. De Zoya, 7 111. 385; Kent v. Ricards, 3 Md. Ch. 392; Smith v. Lowry, i Johns. Ch. (N. Y.) 320; De Louis v. Meek, 2 Greene (Iowa) 55. 1. The following States adhere to the common-law practice more or less closely : Delaware, District of Colum- bia, Florida, Illinois, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, West Virginia. Alabama has a scheme of procedure very similar to Tennessee, and also has separate chancery courts ; but as its Code, at least in its provisions as to joinder of actions, closely assimilates to the Reformed Procedure, it has been classified as a Code State. Louisiana. While Louisiana has a complete Code, both adjective and substantive, yet its Code of Procedure is as technical, at least in its nomen- clature, as is the common-law proced- ure, and therefore it will be treated in this article together with the com- mon-law States. Maryland. " Causes of action of whatever kind, provided they be by and against the same parties, and in the same rights, may be joined in the same suit ; but this shall not extend to replevin or ejectment ; but the Court shall have power to prevent the trial of different causes of action to- gether if, in the opinion of the Court, such trial would be inexpedient ; and in such case the Court may, when the case comes on for trial, or before, direct separate cases to be docketed, and separate trials to be had in their order of priority, either immediately or at such time or times as the Court shall deem most equitable and just." 33 Act of Simplification of Mary- land. A count in debt cannot be joined with a count in assumpsit, and such misjoinder may be taken advan- tage of by motion in arrest of judg- ment. "The Act of 1856, ch. 112, 33, authorized causes of action of whatever kind, except replevin and ejectment, to be joined in the same suit, provided they were by and against the same parties, and in the same right. But the code does not authorize such joinder of causes of action or counts, and if they are so joined, the misjoinder may be taken advantage of by the motion in arrest of judgment." Per Grason, J., in Canton Nat. B'l'dg Assoc. v. Weber, 34 Md. 669. See Swern. v. Sharretts, 48 Md. 408. New Mexico has, paradoxically it would seem, since her first settlers were of the Spanish race, adopted the common-law method of procedure. " All suits at law in the district courts shall be commenced by filing a decla- ration in the office of the clerk of the court, and the pleadings and practice Joinder at Common Law. ACTIONS. Dependent on Form.. 2. Joinder of Actions Dependent on Form. At common law the joinder of actions was dependent on form. If two causes of action could be enforced by means of the same kind of original writ, they might be joined ; otherwise not. 1 The rule was laid down that, " wherever the same plea could be pleaded and the same judg- ment be given on several counts, they could be joined in the same declaration." ** shall be according to the forms and rules of the common law ; and all suits in equity shall be commenced by filing a bill in the office of the clerk of the court." 1907 Compiled Laws New Mexico (1884). Tennessee has what is termed a "Code," but as this State differen- tiates law and equity, and has chan- cery courts, and as its Code is not a sweeping one, it is classified here as a common-law State. "The declaration shall state the plaintiff's cause of action. It may contain several state- ments or counts. But where several distinct causes of action against the same party are joined, the court may direct separate trials of the issues." 3606 Code Tennessee (1884). " When- ever the facts of the case entitle the plaintiff to sue for breach of contract, or, at his election, for the wrong and injury, he may join statements of his cause of action in both forms, or either." 3442 Code Tennessee (1884) (Millikin and Vertrees). 1. "Where a plaintiff has several distinct causes of action, he is allowed to pursue them cumulatively in the same suit, subject to certain rules which the law prescribes as to joining such demands only as are of similar quality or character. Thus, he may join a claim of debt on bond with a claim of debt on simple contract, and pursue his remedy for both by the same action of debt. So, if several distinct trespasses have been commit- ted, these may all form the subject of one declaration in trespass; but, on the other hand, a plaintiff cannot join in the same suit a claim of debt on bond and a complaint of trespass, these being dissimilar in kind. Such differ- ent claims or complaints, when capable of being joined, constitute different parts or sections of the declarations, and are known in pleading by the de- scription of several counts." Stephen on Pleading, 267. "Forms of action . . . created artifi- cial distinctions which prevented causes of action from being joined, which in themselves might be conveniently tried together. We have seen that if a log of wood be thrown upon a man and breaks his arm, he must under the old law bring an action of trespass; but if he falls over the log after it has fallen, and breaks his arm, he must bring an action on the case; the differ- ence in the forms of action consisting in the insertion or omission of the words m et armis. Now if it so hap- pened that a person had received inju- ries both ways, from the same person,, he could not have joined the two causes of action in one suit, because trespass and case could not be joined. Forms of action created difficulties, in two ways: first, in the application of the wrong form of action to a par- ticular case; and secondly, in the mis- joinder of forms of action. If a wrong form was applied, it was fatal to the action; and if causes of action were joined which the forms of action for- bid, it was fatal too. The supposal of forms of action was that they were founded upon substantial distinctions which prevented incongruous and dis- similar causes of action from being in- conveniently mixed together in the. same suit. But this is not so. For causes the most dissimilar in their in- trinsic nature might be joined under the doctrine of forms of action, while those most identically alike could not be joined. ' The plaintiff might join in one action a claim on a promissory note, on a breach of promise of mar- riage, and a complaint of negligence against an attorney; in a second he might join a claim for criminal conver- sation with trespass to his person, his lands, or his goods; in a third he might sue for the seduction of his daughter, infringing his patent, and for neg- ligently driving over, and for slan- dering him; because in all these cases the form of action was the same.' The joinder, therefore, of the most incon- gruous causes of action might occur under the old procedure with its forms of actions supposed to guard against it." Per Tyler in his "Treatise on the Maryland Procedure," 41, 42. 2. Thus the first count was trover Joinder at Common Law. ACTIONS. Single Cause of Action. 3. Single Cause of Action. In common-law joinder, as well as in joinder under the Code, the question as to whether the matter constitutes a single cause of action, or more than one, is material and relevant. Of course, if the matter only makes one cause of action, no question of misjoinder can arise. But as to what con- stitutes a single cause of action, the common-law States are, like the Code States, somewhat divided, especially in reference to its bearing on joinder. 1 for a dog. The second and third counts were on the custom of the realm against the carrier for not safely delivering the dog. It was held a proper joinder. " Perhaps the rule of judging whether two counts can be joined, by considering whether the same judgment can be given on both, is not true in its extent; but by adding another requisite it is universally true. For wherever the same plea may be pleaded and the same judgment given on two counts, they may be joined in the same declaration. Assumpsit and tort cannot be joined together, be- cause the pleas to both are not the same. But the whole of this is case; the same plea of not guilty goes to the whole declaration; and the court may give the same judgment on the whole. The common way of declaring against a carrier now is in assumpsit, to which trover cannot be joined; but if the plaintiff declare on the custom of the realm, a count in trover may be joined; it only depends on the form of the ac- tion." Per Buller, J., in Brown v. Dixon, i T. R. 276. 1. Injury to Person and Property by Same Act. Where a person is injured in his person and property by the same negligent act, he may declare for dam- ages, both to his person and property, in one count, or he may declare for each separately, in different counts. Chicago West Div. R. Co. v. Ingra- ham, 131 111. 659. See Baltimore, etc., R. Co. v. Ritchie, 31 Md. 191, where it was held that the injuries could be united and counted on in the same count. See also Brunsden v. Hum- phrey, 14 Q. B. Div. 141. Action for Suborning Witnesses. A declaration in an action for suborning witnesses to 'defame the character of the plaintiff, each count of which al- leges a series of connected acts as parts of a scheme designed to defame the plaintiff, sets out but one cause of action. Rice v. Coolidge, 121 Mass. 393, 23 Am. Dec. 279. Bond not Merged by Parol Promise. Where a party, being liable upon a re- plevin bond, promised in writing to pay the amount of his liability by the next term of court if no suit was brought on the bond, but the bond was not released, it was held that no action would lie upon the subsequent prom- ise, as it could not merge or destroy the higher security. Leland v. Barry, 69 111. 348. Injuring Plaintiff and his Child. It is improper to join a count for injuring the plaintiff by a train and for killing his child at the same time. Specht v. Railroad Co., 7 Pa. Co. Ct. Rep. 54- Contract and Note. The plaintiff can- not be required to elect between a con- tract and a promissory note where both are parts of the same transaction and the action is based on both. Piano Mfg. Co. v. Parmenter, 30 111. App. 569. Consolidation of Suits in Equity. Upon a motion to consolidate suits in equity, the only inquiry is in respect to the identity of the subject-matter in- volved. Such a motion is addressed to the discretion of the court, and courts of error will not interfere unless k is clear that such discretion has been greatly abused. Woodburn v. Woodburn, 23 111. App. 289. Separate Breaches. A declaration upon the covenants in a deed averred the making of covenants of seizin, of power to sell, and of warranty, only; the breach included not only these, but also covenants against incumbrances and for quiet enjoyment. The de- fendant assigned as a ground for de- murrer that this one count set forth more than one cause of action. Held, that as all these causes of action were of the same nature, and could be an- swered by one plea, they might be joined in one count; that the sepa- rate breaches were to be regarded as so many distinct counts. Brady v. Spurck, 27 111. 478. Joinder at Common Law. ACTIONS. Inconsistent Counts, 4. Inconsistent Counts. The common-law states somewhat as- similate their rulings on the subject of inconsistent counts to the Code states. As under the Codes, where two causes of action are on their face inconsistent, they cannot be joined. 1 Libel Published on Different Days. Where libellous articles are published upon different days, each article con- stitutes a separate cause of action, but all may be joined in the same declara- tien. Randall v. Gartner, 96 Mich. 284. Wrongful Acts Aimed at a Single Re- sult. A series of wrongful acts, all aiming at a single result and contrib- uting to the injury complained of, to wit, the destruction of one's business, credit, and reputation, may be counted upon collectively, as producing that result, in an action on the case. Oli- ver v. Perkins, 92 Mich. 304. Flooding Land. In a suit to recover damages caused by the alleged wrong- ful flooding of plaintiff's land by the use of flash-boards on defendant's dam, the declaration may cover sev- eral years if it alleges that the flooding was caused each year by the use of said flash-boards. Hamilton v. Plain- well Water Power Co., 81 Mich. 21. Reserved as One Cause on Appeal. Several original bills in chancery and cross-bills filed by creditors and lien- holders of a defendant company, in- volving a settlement of various and conflicting claims and liens upon sub- stantially the same property, were heard together, by consent, and under an agreement of all parties that all the evidence in any one or more of the causes should apply to every other of the suits, so far as applicable, and the evidence was preserved by one common certificate. Held, that as the causes were heard and determined as one cause in the trial court, the same might well be reviewed, on appeal or error, in the same manner, as one cause. Chicago, etc. R. Co. v. Peck, 112 111. 408. Separate Cars Destroyed by Fire. In an action by a rolling-stock company against a railroad company engaged in the general business of switching cars to recover the value of several leased cars which were destroyed in the same conflagration, said cars hav- ing been switched at different dates, it was held that if the plaintiff has a cause of action, it has a separate one for each car; that the fact that the declaration was amended after the cause of action was barred as to one of the cars, so as to include such car and to make appellees the parties plaintiff, did not have the effect of re- viving the claim as to said car; that the owner of the car was the proper party to bring the suit; and that such owner was in no way bound by con- tracts existing between the defendant and its lessee. Peoria, etc., R. Co. v. U. S. Rolling Stock Co., 28 111. App. 79. Plaintiffs Different. Where the plain- tiffs in two suits are different, the court has no authority to consolidate on a motion of the defendants alleg- ing that the suits make only one cause of action. Miles v. Danforth, 37 111. 156. Louisiana. Two or more demands, not exclusive of each other, may be properly cumulated in one suit. Ter- tron v. Durand, 29 La. Ann. 506. Michigan. The right of action given by How. Sts. 8314, to the personal representatives of a deceased person for the pecuniary injury result- ing from his negligent killing, and that which survives under Act No. 113, Laws of 1885 (3 How. Sts. 7397), for negligent injuries to the person, are separate and distinct causes of action, and the latter cannot be intro- duced in,to a cause based upon the right given under the first statute cited, by way of amendment to the declaration. Hurst v. Detroit City R. Co., 84 Mich. 539. 1. Consolidation Coal Co. v. Shan- non. 34 Md. 144 ; McLennan v. Mc- Dermid, 50 Mich. 381 ; Barton v. Gray, 57 Mich. 623 ; Gott v. Superior Court, 42 Mich. 625. But it is not necessary that special counts in as- sumpsit should be harmonious, even when the same instrument is set out in each as the foundation of the action. Barton v. Gray, 48 Mich. 164. See Hall v. Woodin, 35 Mich. 67 ; Wyman v. Crowly, 33 Mich. 84 ; Wetmore v. McDougall, 32 Mich. 276 ; Berringer v. Cobb, 58 Mich. 557 ; Portage Lake Miners, etc., Ben. Soc. v. Phillips, 36 Mich. 22 ; Watson v. Watson, 49 Mich. 540. Breach of Contract and Rescission. Counts for breaches of a contract and 166 Joinder at Common Law. ACTIONS. Debt. 5. Debt. Any cause of action which can be brought by means of the action of debt may be joined with any other cause of ac- tion which can be so brought. It is immaterial whether one cause of action is on a sealed instrument and the other on a parol contract. 1 counts for rescinding a contract can- not be joined. Toledo, etc., R. Co. v. Jacksonville Depot Bldg. Co.., 63 111. 308. But counts in the declaration for a rescission provided for by contract, and for a rescission because of fraud, are not repugnant. Pearsoll v. Cha- pin, 44 Pa. St. 9 ; but a count for dam- ages for the fraud and one for a re- scission would be. Ibidem. Where a contract provides that a chattel sold is good, and if not, will be made good, the right to return it in case of failure is in pursuance and not in avoidance of the contract, and a count for breach of warranty is not in- consistent with one averring return, or with the common count for money had and received. Kimball, etc., Mfg. Co. v. Vroman, 35 Mich. 310, 24 Am. Rep. 558. Breach of Warranty and Fraud. Counts for breach of warranty in the sale of a chattel and for fraud prac- tised in the sale are not inconsistent. Counts for fraudulent representations of soundness in the sale of a horse, and for a breach of warranty of soundness in the sale of the same horse, may be united. Patterson v. Kirkland, 34 Miss. 423. A special count in assumpsit for a breach of warranty on the sale of a horse, and a second count for the re- covery of money paid without consid- eration, setting up the circumstances under which it was obtained, and that the horse purchased was absolutely without value, are not inconsistent, and plaintiff cannot be compelled to elect upon which he will proceed. Murphy v. McGraw, 74 Mich. 318. Note and its Consideration. A count upon a promissory note and one upon the precedent demand upon which the note was founded may be joined in the same declaration. Kennel v. Mungey, Peck (Tenn.) 273. Expulsion from Premises, and Assault and Battery. A count for assault and battery is not inconsistent with one for wrongful expulsion from premises. A declaration in case contained two counts, one of which alleged the wrongful expulsion of plaintiff from premises occupied, and the other .an assault and battery. Held, that as no inconsistency between these counts was pointed out, there was no error in refusing to require an election between them. Taylor v. Adams, 58 Mich. 187. Trespass for Injuries and Contract in Settlement. A contract which liqui- dates a tort merges it, and a cause of action for the tort is inconsistent with one on the contract. A declaration containing a count in trespass for per- sonal injuries, and a count upon a contract made in settlement of plain- tiff's claim for damages for such in- juries, is bad for repugnancy on demurrer. Henderson v. Boyd, 85 Tenn. 21. Principal and Agent. In suits by a principal against his agent, a count based upon the duty of the agent, as such, is inconsistent with a count which shows that the agent was not such, but a party to a contract with the principal. A declaration in a suit by a principal against an agent aver- ring the duty of the agent to pay to the principal certain moneys and property received by him upon a mortgage belonging to the principal, and sufficient in amount to pay the same in full, and also counting upon the promise of the agent that, if the principal would make a sale of the mortgaged premises under a decree before then taken on a foreclosure of the mortgage, he would pay him any deficiency arising on such sale, sets forth two inconsistent causes of action. Perkins v. Hershey, 77 Mich. 504- Recovery on One Count. Joinder of repugnant counts in the same decla- ration does not preclude recovery on one of them. Berringer v. Cobb, 58 Mich. 557. See also Ives v. Williams. 53 Mich. 636. 1. Chitty on Pleadings (:6th Am. ed.), 222; Bacon Abr., Actions, C.; Com. Dig., Actions, G. ; 2 Vin. Ab. , pi. 42; Tidd Pr. 10, n; Barclay v. Moore, 17 Ala. 634; Union Cotton Mfg. Co. v. Lobdell, 13 Johns. (N. Y.) 462; De Proux v. Sargent, 70 Me. 266; Smith v. First Congregational Meetinghouse, 167 Joinder at Common Law. ACTIONS. Trover and Case. 6. Trover and Case. Trover and case may be joined. 1 8 Pick. (Mass.) 178; Van Deusen v. Blum, 18 Pick. (Mass.) 229, 29 Am. Dec. 582; Mardis v. Terrell, Walk. (Miss.) 327; Bogardus v. Trial, 2 111. 63; Beardsley v. Southmayd, 14 N. J. L. 534- Debt and As3nmpsit cannot be joined. Chitty on Pleadings (i6th Am. ed.), 222; Adams v. Hardin, 19 111. 273; Rutan v. Hopper, 29 N. J. L. 112; American Linen Co. v. Sheldon, 31 N. J. L. 420; Graines v. Craig, 24 Ark. 477- Debt and Detinue. Counts in debt and detinue may be joined. Chitty on Pleadings (i6th Am. ed.), 222; 2 Saun- ders 117; Bedford v. Alcock, i Wils. 252; Dalston v. Janson, 5 Mod. 92; Calvert v. Marlow, 18 Ala. 67. An action of debt in the debet and de- tinet cannot be maintained against a person in his own right and as execu- tor. Watson v. Dickey, Tapp. (Ohio) 235- Debt and Covenant cannot be joined. Chitty on Pleadings (i6th Am. ed.), 222; Brumbaugh v. Keith, 32 Pa. St. 327. The Action of Debt Very Technical. The action of debt was very technical at common law, and the courts often used very slight distinctions to dif- ferentiate it from assumpsit; and statutes often gave rise to the ques- tion as to whether the action could be maintained. See Chitty on Pleadings, action " Debt," passim. Where the declaration contained counts on the record of a judgment and a common count for interest, and contained the words "in considera- tion of the indebtedness the defend- ant undertook and then and there faithfully promised to pay the same when thereunto afterwards re- quested," held, that this made the latter a count in assumpsit, and that it is error to join counts in debt and assumpsit in the same declaration. Had the word "agreed" been used in the common count, instead of " prom- ised," it would have been a count in debt. Guinnip v. Carter, 58 111. 296. Virginia Statute Respecting the Requi- sition of Bail. Debt on a specialty and on a mutuatus or other simple parol contract may be joined in the same action, the rule of common-law practice not being at all varied, in this respect, by the statute of Virginia respecting the requisition of bail upon the process, and the right of appear- ance bail to defend the action. Eib v. Pindall, 5 Leigh (Va.) 141. 1. Chitty on Pleadings (i6th Am. ed.), 222; Brown v. Dixon, i T. R. 274; Mast v. Goodson, 3 Wils. 348; Smith v. Goodwin, 4 B. & Ad. 413, 24 E. C. L. 89; Horsely v. Branch, i Humph. (Tenn.) 199; Googins z>. Gilmore, 47 Me. 9, 74 Am. Dec. 472; Wait v. Kel- logg, 63 Mich, 138; Ayer v. Bartlett, 9 Pick. (Mass.) 160; McConnell v. Leighton, 74 Me. 415; Blackstone Bank v. Lane, 80 Me. 165. Count in Assumpsit. In a declaration on the case, one count stated that the plaintiff at the request of the defend- ant had caused to be delivered to him certain pigs, to be taken care of by the defendant for plaintiff, and in con- sideration thereof defendant under- took and then and there agreed with the plaintiff to take care of the pigs and to redeliver them on request. Held, on motion in arrest of judgment, that this was a count in assumpsit, and could not be joined with counts in case. Corbett v. Packington, 6 B. & C. 268, 13 E. C. L. 170. A count stating " that defendant had and received for plaintiff a sum of money, to wit, IDS., to be paid by de- fendant to plaintiff upon request; yet defendant, not regarding his duty, had converted and disposed thereof to his own use," is laid in assumpsit, though colorably in trover, and cannot be joined with counts in case; and it is demurrable generally, though the de- murrer goes only to that particular count. Orton v. Butler, 2 Chit. Rep. 343, 18 E. C. L. 361. Count in Case. A count stating that the plaintiff had delivered a note to the defendant to get it discounted, and account with the plaintiff for the money raised on it, and that the defendant received the note for that purpose, but, intending to defraud the plaintiff, had not, though requested, accounted with him, etc., is laid in. tort (whether formal or not in its frame) and not in assumpsit; and no objection can be taken upon a general demurrer to the whole declaration because such count was joined with a count in trover. Samuel v. Judin, 6 East 335. See Remarks of Ellenborough, C.J., on joinder. 168 Joinder at Common Law. ACTIONS. Assumpsit Trespass. 7. Assumpsit. The action of assumpsit is one brought to re- cover damages for the breach of a contract not under seal. All causes of actions enforceable in assumpsit may be joined. 1 Some- times other matters have been held either joinable or not joinable with assumpsit. 2 8. Trespass. Several distinct trespasses may be joined in the same declaration in trespass. 3 Trover and Fraud. It is doubtful whether a count for trover and a count for fraud in the sale of a horse can be joined in the same declaration, with- out an allegation that the contract has been rescinded. Kennet v. Robinson, 2 J. J. Marsh. (Ky.) 96. 1. Chitty on Pleadings (i6th Am. ed.), 222 ; Appleman v. Michael, 43 Md. 269 ; Bruen v. Ogden, 18 N. J. L. 125 ; Mc- Dowell v. Oyer, 21 Pa. St. 417 ; Hal- Jock v. Powell, 2Cai. (N.Y.)2i6; Boyls- ton v. Sherman, 31 Ala. 538 ; Livings- ton v. Pippin, 31 Ala. 542. 2. Covenant and Assumpsit. Counts in covenant and the common counts in assumpsit cannot be joined. Ma- guire v. Rabenau, 16 W. N. C. (Pa.) 479; Smaltz v. Hancock, 118 Pa. St. 550. Tort and Assumpsit cannot be joined. Wickliff -u. Davis, 2 J. J. Marsh. (Ky.) 69. Assumpsit and Trover cannot be joined. Little v. Gibbs, 4 N. J. L. 212; Howe v. Cook, 21 Wend. (N. Y.) 29. Warranty and Fraud. A count on a warranty and another for fraud in the sale of a slave cannot be joined. Car- starphen v. Graves, i A. K. Marsh. . Preston, 66 Mich. n. Common Counts and for Use and Occupa- tion. The common counts may be joined with a count for use and occu- pation of a house and lot, a count upon a special contract to pay rent, a count on a special contract for the purchase of a house and lot upon which a balance was claimed, and counts on judgments under How. Sts., 7778, allowing assumpsit to be brought on judgments. Hogsett v. Ellis, 17 Mich. 361. Recovery of Land and Damages. A cause of action for damages for with- holding the possession of real prop- erty may be joined with one for the possession of such property. Pengra v. Munz, 29 Fed. Rep. 830. Rent and Use and Occupation. A count to recover rent due on a lease and a count for use and occupation may be joined. Wagle v. Bartley (Pa., 1887), n Atl. Rep. 223. 1. Fairbanks v. Amoskeag Nat. Bank, 30 Fed. Rep. 602. 2. Hart v. Fitzgerald, 2 Mass. 509, 3 Am. Dec. 75. 3. Miles v. Oldfield, 4 Yeates (Pa.) 423, 2 Am. Dec. 412. In Kentucky an action for malicious arrest cannot be joined with one for slander. Dragoo v. Levi, 2 Duv. (Ky.) 520. 4. " One object proposed in inserting two or more counts in one declaration, when there is in fact but one cause of action, is in some cases to guard against the danger of an insufficient statement of the cause, where a doubt exists as to the legal sufficiency of one or another of two.or more different modes of declaring. But the more usual end proposed in inserting more than one count in such a case is to ac- commodate the statement of the cause, as far as may be, to the possible state of the proof to be exhibited on the trial; or to guard, if possible, against the hazard of the proofs varying ma- terially from the cause of action. So that if one or more of the several counts should not be adapted to the evidence, some other of them may be so." Gould on Pleading, chap, iv, 4. 5. Teague v. Irwin, 134 Mass. 303; New Haven, etc., Co. v. Campbell, 128 Mass. 104, 35 Am. Rep. 360; Clapp v. Campbell, 124 Mass. 50; Morse z>. Hutchins, 102 Mass. 439; Hulett v. Pixley, 97 Mass. 29; Clay v. Barlow, 123 Mass. 378; Jenkins v. Bacon, in Mass. 373; May v. Western Union Tel. Co., 112 Mass. 90; Cunningham v. Hall, 7 Gray (Mass.) 559; Black ?. Howard, 50 Vt. 27; Hagar v. Brainerd, 44 Vt. 294; Skinner v. Wilder, 38 Vt. 115, 88 Am. Dec. 645; Templeton v. 174 Joinder at Common Law. ACTIONS. Suits in Equity. 16. Actions at Law and Suits in Equity. Actions at law and Clogston, 59 Vt. 628; Rutherford v. Whitcher, 60 N. H. no; Little v. Blunt, 13 Pick. (Mass.) 473; Bishop v. Baker, 19 Pick. (Mass.) 517; Kennedy v. Saunders, 142 Mass. 9; Allen v. Codman, 139 Mass. 136; Kellogg v. Kimball, 142 Mass. 124; Cole v. Sprowl, 35 Me. 161, 56 Am. Dec. 696; National Exchange Bank v. Abell, 63 Me. 346; Hartsock v. Mort, 76 Md. 28; Kellogg v. Kimball, 122 Mass. 163; Ames v. Stevens, 120 Mass. 218; Mason v. Field, 119 Mass. 585; Mahon v. Blake, 125 Mass. 477; Owen v. Weston, 63 N. H. 599, 56 Am. Rep. 547; Walker v. Walker, 63 N. H. 321, 56 Am. Rep. 514; Metcalf v. Gilmore, 59 N. H. 417, 47 Am. Rep. 217. Must Appear in Declaration that it is Same Cause of Action. A count in tres- pass joined with a count in trover is bad on dumurrer, unless it appears from the declaration that they are for the same cause of action. Thus, where the count in trespass alleged that the defendant broke and entered the plain- tiff's close, and cut down and carried away 3000 spruce trees, 1000 hem- lock trees, and 1000 other trees, and the count in trover alleged that the de- fendant converted to his own use 250,- ooo feet of spruce lumber and 10,000 feet of hemlock lumber, etc. , possessed by the plaintiff, held, a misjoinder. Templeton v. Clogston, 59 Vt. 628. Scope of License to Insert Counts Limited. A. and B., owners of adjacent lands and buildings, made a contract where- by B. agreed to make certain altera- tions in the roof of A.'s building where it abutted upon B. In an action by A. for a breach of this contract, he joined counts in tort, averring that they were for the same cause of action. Held, that under these counts A. could not show acts of B. done in regard to por- tions of A.'s roof not abutting on B. Mason v. Field, 119 Mass. 585. Discharge of Sureties by Amendment. If the declaration in an action con- tains a count in contract and one in tort, not alleged to be for the same cause of action, and a demurrer to the declaration is sustained for misjoinder of counts, and the count in tort is stricken out, and, by amendment, a count in tort is added for the same cause of action, and this is properly averred, such amendment does not discharge the sureties on a bond given to dissolve an attachment in the action, although the.amendment is made with- out notice to the sureties. Kellogg v. Kimball, 142 Mass. 124. Same Cause of Action Presumed. The first count alleged that on divers days defendant with force and arms broke and entered plaintiff's close and tore down and destroyed the division fence between said close and land of defendant, and with his cattle, etc., trod down and destroyed the herbage there growing. The third count al- leged that it was defendant's duty to maintain part of the division fence, but that he had not done so, by rea- son of which the cattle of defendant trespassed on plaintiff's close. Held, that the two counts were meant to em- brace the same cause of action, and were joinable under ^ 14, c. 33, of Gen. Sts. Black v. Howard, 50 Vt. 27. Action Entitled in Writ one of Con- tract. Under Gen. Sts. c. 129, 2, cl. 5, a count in contract may be joined in the same declaration with a count in tort when it is deemed doubtful to which class the cause of action be- longs, although the action is entitled in the writ an action of contract. Hu- lett v. Pixley, 97 Mass. 29. See Clay v. Barlow, 123 Mass. 378. Inconsistent Counts. In an action of tort by a mortgagee for the conversion of personal property against an officer who attached it as the property of the mortgagor, and sold it under the Gen. Sts. c. 123, 72, there was a count for money had and received, both counts being alleged to be for the same cause of action. Held, that the two counts were inconsistent, and that the defend- ant had the right to require the plain- tiff to elect upon which count he would proceed. Clappz/. Campbell, 124 Mass. 50. Practice. A declaration contained three counts, two in tort and the third in contract, for money had and re- ceived, not alleged to be for one and the same cause of action. A demur- rer to the declaration was sustained because of a misjoinder of a count in tort with a count in contract. An amended declaration was filed, as a substitute for the first and second counts of the original declaration, con- taining two counts, one in contract and one in tort, and alleging that the count in tort was for the same cause of action '75 Joinder at Common Law. ACTIONS. Louisiana. suits in equity cannot be joined. 1 17. Louisiana. The joinder of actions in Louisiana is techni- cally termed " cumulation of actions." The Code is very broad and liberal, allowing almost all demands to be cumulated which are not inconsistent with each other. 2 The inconsistency which will preclude the joinder of the causes of action must be a real incon- sistency. Mere technical inconsistency, such as that arising from demanding inconsistent relief, or different kinds of relief, will not make the joinder an improper one. 3 as set out in the three counts of the original declaration. A demurrer, filed to the amended declaration be- cause neither count stated a legal cause of action and for misjoinder, was sus- tained as to the first amended count and overruled as to the others. Held, that the count for money had and re- ceived in the original declaration re- mained in the record as one of the counts upon which the plaintiff relied. Kellogg v. Kimball, 122 Mass. 163. 1. Cherokee Nation v. Southern Kan. R. Co., 135 U. S. 641; Hurt v. Holling- worth, loo U. S. 100; Buzard v. Hous- ton, 119 U. S. 342. Massachusetts. A count praying for relief in equity under Sts. 1853, c. 371, cannot be joined with a count at law without the affidavit required by Sts. 1840, c. 87, I, to give jurisdiction to the supreme judicial court. Harvey v. De Witt, 13 Gray (Mass.) 536. New Hampshire. Justice may re- quire the prosecution of an action at law and a bill in equity on the same cause of action at the same time. Brooks v. Howison, 63 N. H. 382. 2. " Separate actions may be cumu- lated in the same demand, except in the cases hereafter expressed. This is termed cumulation of actions. The plaintiff is not allowed to cumulate several demands in the same action when one of them is contrary to or precludes another. As, when one has bought a thing in the name of another, and with his funds, without his au- thorization, the person for whom the purchase has been made cannot de- mand by the same action both the thing bought in his name and the money employed for paying the price. Nor can a vendor demand at the same time the rescission of the sale he had made and the. price for which it was made ; he must decide for one or the other of the two causes of action, as the one precludes the other. If the plaintiff'has several causes of action tending to the same conclusion, not contrary to nor exclusive of each other, though they arise from different con- tracts, he may cumulate and bring them in the same suit; as, for example, if one claim from another one hun- dred dollars in virtue of a sale and one thousand dollars in virtue of a loan; or if he claim a movable from another both by inheritance and by purchase." Rev. Code 1875 (Voorhies), arts. 148, 149, 151, p. 66 ; Petitpain v. Frey, 15 La. 195; De L'Homme v. De Kerle- gand, 4 La. 353; Copley v. Flint, 16 La. 380; Bank of Louisiana v. Delery, 2 La. Ann. 648; Ouliber v. His Credit- ors, 16 La. Ann. 287 ; Theuver v. Knorr, 24 La. Ann. 597 ; Kenney v. Dow, 10 Martin (La.) 577, 13 Am. Dec. 342 ; Williams v. Close, 12 La. Ann. 873; Cross v. Richardson, 2 Martin N. S. (La.) 323; Montross v. Hillman, n Rob. (La.) 87 ; Buquet v. Watkins, I La. 131; Wrincle v. Wrincle, 8 Martin N. S. (La.) 333; Atkinson v. Atkinson, 15 La. Ann. 491 ; Medart v. Fasnatch, 15 La. Ann. 621; Nouvet v. Bellinger, 15 La. Ann. 293 ; Tertrou v. Durand, 29 La. Ann. 506 ; Mills v. Fellows, 30 La. Ann. 824 ; McNair v. Gourrier, 40 La. Ann. 353; Millandon v. Sylvestre, 8 La. 262 ; Miller v. Rougieux, 20 La. Ann. 577; Judice v. Provost, 18 La. Ann. 601; Succession of Serret, 4 La. Ann. 100; Hollingshead v. Sturges, 16 La. Ann. 334. 3. Simulated and Fraudulent Sale. It is not an inconsistency, in pleading in a direct action to annul, to allege that a sale is simulated, and if not simulated that it is fraudulent. Johnson v. Mayer, 30 La. Ann. 1203; Chaffe v. Scheen, 34 La. Ann. 684. See Smith v. Donnelly, 27 La. Ann. 98. Judgment and Note. Where, in an action on a foreign judgment, the pe- tition alleges that a note which wa~ the original evidence of the debt is merged 76 Joinder at Common Law. ACTIONS. Representative Capacity. 18. Actions Brought in a Representative Capacity Executors and Administrators. Where an action is brought by the personal repre- in the judgment, and the action cannot under the evidence be maintained upon the judgment, the petition must be dismissed. The action under the pleadings cannot be sustained on the note. Bordelais v. Mangars, 3 La. Ann. 375. Partition and Petitory Action. A suit should not be dismissed for inconsist- ency and improper cumulation of causes of action in having cumulated an action of partition with a petitory action. Demands not inconsistent may be brought in one petition when between the same persons in the same capacity, and when they are not con- trary to each other, either as to the cause of action prayed for or the relief. Thus an action to recover pos- session of land and for partition may be cumulated. Durbridge v. Crawley, 43 La. Ann. 504 ; Morris v. Lalaurie, 34 La. Ann. 204. Definite Sum and Indefinite Sum. In a suit in which the plaintiff makes claim for a definite sum invested as her share of the capital stock of a partnership, and also for another and indefinite sum as her share of the net profits thereof on final liquidation and settlement, a motion to compel her to elect will not prevail. McNair v. Gourrier, 40 La. Ann. 353. Prayer Does Not Authorize Inconsistent Relief. A prayer for " general relief" does not authorize a judgment recog- nizing the plaintiffs as owners of cot- ton, when in their petition they aver the sale of the cotton, non-payment of the price of sale, and claim a lien and privilege on it. The two reliefs are inconsistent. Adler v. Wolff, 36 La. Ann. 169. Slander and False Imprisonment. A demand for compensation in conse- quence of slander is not contrary to, and does not exclude, a demand for damages sustained by false imprison- ment. Buquet v. Watkins, I La. 131. Rescission of a Sale for Lesion Beyond Moiety and on Account of the Nonpayment of the Price. A suit for the rescission of a sale for lesion beyond moiety, and on account of the nonpayment of the price, cannot be maintained for both demands, as they should not be cumu- lated in the same action. Copley v. Flint, 16 La. 380. Warranty and Fraud. One suit may be brought on two different causes of action if they be not inconsistent. Thus, a cause of action on a contract of warranty, by which the warrantor bound himself to the plaintiff for the good conduct of a clerk; and a cause of action for fraudulent and deceitful rep'resentations in regard to the clerk, by reason of which the plaintiff took him into his service, and suffered in- jury from his malfeasance, may be joined. Cross v. Richardson, 2 Mar- tin N. S. (La.) 323. Different Grounds. A plaintiff may set forth in his petition different grounds upon which he expects to recover, provided he does not .make demands one of which necessarily excludes the other. Montross v. Hill- man, ii Rob. (La.) 87. Opposition to the Homologation of a Tableau. Oppositions having been filed to the homologation of a tableau of distribution presented by the syn- dic of an insolvent, praying for the cancelling of the sales made by the syndic, that the property be disposed of again for the benefit of all the creditors, and the tableau set aside, the opponents subsequently filed other oppositions by way of amendment, in which, abandoning the objects of the first oppositions, and waiving their purpose of disturbing the sales and resisting the homologation of the tab- leau, they pray that the syndic may be condemned, personally, to pay them the amounts for which they were placed in the tableau as credit- ors of the insolvent, on the ground of his having acted without any regu- lar appointment, having sold the prop- erty illegally, and for his neglect and waste of the property. Held, that the demands in the original and amended oppositions are inconsistent, the one precluding the other, and cannot be cumulated in the same action. Blake v. His Creditors, 6 Rob. (La.) 520. Petitory Action for One Tract of Land and Slander of Title of Another. A party may institute a petitory action for one tract of land, and in the same petition may sue the same defendant for slander of title of another and dis- tinct tract, but cannot in the same suit sue for a tract of land and for damages i Encyc. PI. & Pr. 12. 177 Joinder at Common Law. ACTIONS. Representative Capacity. sentative of a decedent, the right to join causes of action is deter- mined by the question whether the sum, when recovered, would be assets. 1 An executor or administrator may declare, as such, for goods sold or money paid by him in that character, and may join such counts with counts on promises to the testator or in- testate. 8 But an executor cannot include counts on causes of action accruing to him in his private right and individual charac- ter, with counts on causes of action which are laid to have been vested in him in his representative capacity. 3 In an action against an executor a count cannot be introduced which would charge him for slander of title to such tract. Will- iams v. Close, 12 La. Ann. 873. Dissolution of a Lease and for Bent. There is nothing inconsistent in a de- mand for the dissolution of a lease being coupled with a demand for the rent up to the time that possession is delivered to the lessor. Dubois -v. Xiques, 14 La. Ann. 430. Demand in Separation of Property by Wife, and to Enjoin the Seizure of Prop- erty Claimed by Her. There is no ob- jection to the cumulation of a demand in separation of property by the wife, with an action to enjoin the seizure of certain property, claimed by her as her separate property, and seized un- der execution by the creditors of her husband. Atkinson v. Atkinson, 15 La. Ann. 491. Possessory Action. Damages may be allowed in a possessory action for a tortious possession. Chinn v. Blanch- ard, 6 La. Ann. 66. 1. " It is now a well-settled rule, in actions by a plaintiff who is an execu- tor or administrator, that where the money, when recovered, would be as- sets, the executor may declare for it in his representative character ; and that the best line to adopt in deter- mining whether counts maybe joined is to consider whether the sum, when recovered, would be assets." Chitty on Pleadings (i6th Am. ed.), 222. 2. Howard v. Powers, 6 Ohio 92; Mc- Kinley v. Call, i T. B. Mon. (Ky.) 54 ; Wilson v. Hunt, 6 B. Mon. (Ky.) 383 ; Sullivan v. Holker, 15 Mass. 374 ; Haskell v. Bowen, 44 Vt. 580 ; Cowel v. Watts, 6 East 405 ; Thompson v. Stent, i Taunt. 332 ; Powley v. New- ton, 2 Marsh. 147 ; Dowbiggan v. Harrison, 9 B. & C. 666, 17 E. C. L. 470 ; Ord v. Fenwick, 3 East 104 ; Edwards v. Grace, 2 M. & N. 190; Chitty on Pleadings (i6th Am. ed.), 222. Count Construed. A count upon a promise made to the plaintiff's intes- tate cannot be joined with a count al- leging that the defendant, " being in- debted to the plaintiff as aforesaid " (the plaintiff having been previously described as administrator) in a cer- tain sum " for goods sold and deliv- ered by the plaintiff to the defendant, in consideration thereof promised to pay the same to the plaintiff ;" and a declaration in which such counts are joined is bad even after verdict. Brown v. Webber, 6 Cush. (Mass.) 560. Vermont. The mere fact that two causes of action do not accrue 'to a plaintiff in the same right is no reason why they may not be joined in the same suit, for the court can instruct the jury to assess separate damages on the several counts. So an admin- istrator may join a count for damages done his intestate in life by the neglect of the defendant with a count for damages accruing to the widow and next of kin by the death of the intes- tate, also resulting from the negli- gence of the defendant. Ranney v. St. Johnsbury, etc., R. Co., 64 Vt. 277, a case where the plaintiff was in- jured by a train and, after having had medical care for twenty-four hours, died. One count was for her pain and expense until she died, the other was for the benefit of the next of kin for whom it was brought. The court treated the matter as two distinct causes of action, and allowed their joinder. See also Preston v. St. Johns- bury, etc., R. Co., 64 Vt. 280. 3. Chitty on Pleadings (i6th Am. ed.), 226; Petrie v. Hannay, 3 T. R. 659 ; Richardson v. Griffin, 5 M. & S. 294 ; Henshall v. Roberts, 5 East 150 ; King v. Thorn, i T. R. 489; Nicholas v. Killegrew, i Ld. Ray, 457; Webster v. Spencer, 3 B. & Aid. 360. 178 Joinder at Common Law. ACTIONS. Representative Capacity. personally, for the judgment in the one case would be de bonis testatoris, and in the other de bonis propriis.* 4. Chitty on Pleadings (i6th Am. ed.), 227 ; Vaughn v. Gardner, 7 B. Mon. (Ky.)326; Moody v. Ewing, 8 B. Mon. (Ky.) 521; Godbold v. Roberts, 20 Ala. 354; Jefford v. Ringgold, 6 Ala. 544; Terhune v. Bray, 16 N. J. L. 54. See Partridge v. Court, 5 Price 412 ; Catherwood v. Chaband, i B. & C. 150, 8 E. C. L. 67 ; Brassington v. Ault, 2 Bing. 177, 9 E. C. L. 369 ; Hosier v. Arundel.sB. & P. 7; Sarell v. Wine, 3 East 409 ; Hickman v. Walker, Willes 27 ; Pittan v. Foster, 2 D. & R. 363 ; Hurst v. Parker, i B. & Aid. 93 ; Short v. McCarthy, 3 B. & Aid. 626 ; Whitehead v. Howard, 5 Moore 105 ; Ward v. Hunter, 6 Taunt. 210. Fund out of which Damages are to be Paid being Same. A count against an executor, as such, for money paid by plaintiff since the testator's death, on a bond in which he was testator's surety, and charging the executor with such payment to his use as executor, and with his promise to repay, is a count on which a judgment de bonis testatoris may be rendered, and which may be joined with counts for promises made by testator in his lifetime. Counts may be joined where the fund out of which the damages are to be applied is the same. Cawleyw. Reeve, 17 N. J. L. 415- On Promise of Testator and for Funeral Expenses. In assumpsit against an executor, a count on a promise by the testator may be joined with a count for the funeral expenses, alleging that they were incurred at the request of the executor, and that he, as executor, promised to pay therefor. But it seems that a count on a promissory note of the executor, given in payment of the funeral expenses, cannot be joined with a count upon a promise of the testator. Hapgood v. Houghton, 10 Pick. (Mass.) 154. Proceeding on Bond for Support. The administrator of the obligor on a bond for support being ordered to retain a sum in his hands for such support unless a bond was given to expend it for that purpose, the guardian of the obligor's heir gave bond, and the same was so expended, but proved insuffi- cient. The administrator and various creditors of the obligee thereupon brought a bill in equity against the heir and the guardian to reach and apply the obligor's real estate in pay- ment of their claims. Held, that the administrator's remedy was by an action at law on the bond, and that of the creditors, if any, was by charging the heir as trustee in a proceeding against the administrator. Held, also, that the misjoinder was a formal de- fect that could be cured by amend- ment. Clark v. Holbrook, 146 Mass. 366. Amending Pleading. The plaintiff, having declared " that the defendant, administrator, etc., being indebted for money had and received by the intes- tate, promised," etc., amended by de- claring that "the intestate, being indebted for money had and received by him, promised," etc. Held, that the amendment was for the same cause of action as the original count. Eaton v. Whitaker, 6 Pick. (Mass.) 465 ; Clark v. Lamb, 6 Pick. (Mass.) 512. Action against Bondsmen of Adminis- trator and for Fraudulent Acts of Dece- dent. A cause of action against the sureties upon the bond of an adminis- trator, arising from the breach of the condition of the bond, cannot be united in the same complaint with a cause of action against the administra- tor, arising from acts of the deceased intestate in fraudulently disposing of his property. Howse v. Moody, 14 Fla. 59. Unconnected Demands. Unconnected demands against different estates can- not be united in the same bill, though the defendant is executor of both. Daniel v. tMorrison, 6 Dana (Ky.) 186. Individual Promise and upon Promise of Testator. Counts charging the de- fendants, as executors, upon the promise of their testator, and upon their own promise as executors in con- sideration of assets, may be joined in the same declaration, and the judg- ment upon each count will be de bonis testatoris. Dixon v. Ramsay, I Cranch (C. C.) 472. Kentucky. Promises by the testator or intestate and a third person, and promises by the testator alone, may be joined in a suit against the executor or administrator since the statute of 1796. Haggins v. Oilman, 10 B. Mon. (Ky.) 217 ; Hamlet v. Bates, 10 B. Mon. (Ky.) 437. 179 Joinder under the Codes. ACTIONS. Code States. 19. Joinder in Equity. The joinder of two or more distinct sub- jects in an equity bill is multifarious. The cause of action in equity is broader than at law, and embraces more matters ; but it is a cardinal rule in equity practice that only one separate and distinct matter can be prosecuted in one suit. There is no such thing recognized in equity practice as the joinder of different ac- tions or suits. 1 VIII. JOINDER OF CAUSES OF ACTION UNDER THE CODES 1. Code States. Twenty-seven states and three territories have adopted a Code of Civil Procedure.'-* These Codes all reduce to the form of a statute the law on the subject of the joinder of causes of action. Statutory Provisions. While the statutes differ in some minor details, they all are more or less similar to the New York Code. They are in the main founded on the chancery principle that all controversies should, as far as practicable, be settled in one action. 3 1. See article " MULTIFARIOUSNESS." In endeavoring to avoid the error of making a bill not sufficiently ex- tensive to answer the purpose of complete justice, care must be taken not to run into the opposite defect, viz., that of attempting to embrace in it too many objects ; for it is a rule in equity, that two or more dis- tinct subjects cannot be embraced in the same suit. The offence against this rule is termed multifariousness, and will render a bill liable to a de- murrer. Daniell on Chancery Pleading and Practice (4th ed.), vol. i. 334. " By multifariousness in a bill is meant the improperly joining, in one bill, distinct and independent matters, and thereby confounding them; as, for example, by uniting in one bill several matters, perfectly distinct and unconnected, against one defendant, or the demand of several matters of a distinct and in- dependent nature against several de- fendants in the same bill." Story Eq. PI. 271. The general rule in equity is that several grievances must be re- dressed by several proceedings, the only recognized exceptions being where a single right is asserted on one side which affects all the parties on the other side in the same way, or where a single wrong is complained of which falls on them all simultaneously and together. Familiar instances are rights in common which are resisted by the owner of the estate on which they are charged, tax-rolls assessing all parties on an equal ratio, and frauds by trus- tees affecting the beneficiaries. If there is any distinction in the propor- tion or character of the several griev- ances, there can be no joinder. Win- slow v. Jenness, 64 Mich. 84; Jenness v. Smith, 64 Mich. 91 . 2. Alabama, Arkansas, California, Colorado, Connecticut, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Min- nesota, Missouri, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Oregon, South Car- olina, South Dakota, Texas, Washing- ton, Wisconsin, Wyoming, Arizona Ter- ritory, Oklahoma Territory, and Utah Territory. New Mexico has by statute established the common-law prac- tice. 3. Different Code Provisions. "The plaintiff may unite in the same com- plaint two or more causes of action, whether they are such as were for- merly denominated legal or equitable, or both, where they are brought to re- cover as follows : " i. Upon contract, express or im- plied. "2. For personal injuries, except libel, slander, criminal conversation, or seduction. "3. For libel or slander. "4. For injuries to real property. " 5. Real property, in ejectment, with or without damage for the withholding thereof. "6. For injuries to personal prop- erty. " 7. Chattels, with or without dam- ages for the taking or detention there- of. "8. Upon claims against a trustee 1 80 Joinder under the Codes. ACTIONS. Same Transaction." 2. Causes of Action Arising Out of " Same Transaction " a. GEN- ERALLY. There is a uniformity of judicial decisions in the con- by virtue of a contract or by operation of law. "9. Upon claims arising out of the same transaction or transactions con- nected with the same subject of action, and not included within one of the fore- going subdivisions of this section. " But it must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are consistent with each other, and, except as otherwise pre- scribed by law, that they affect all the parties to the action ; and it must ap- pear upon the face of the complaint that they do not require different places of trial." 484 New York Code Civ. Proc. " I. Upon contract, express or im- plied. " II. For injuries, with or without force, to person and property, or either, including a conversion of property to the defendant's use. " III. For injuries to character. " IV. Upon claims to recover real property, wither without damages for the withholding thereof, and the rents and profits of the same. "V. Upon claims to recover per- sonal property specifically, with or without damages for the withholding thereof. "VI. Claims arising by virtue of a contract or by operation of law in favor of or against a party in some repf esen- tative or fiduciary capacity. "VII. Upon claims, whether in con- tract or tort, or both, arising out of the same transaction or transactions con- nected with the same subject of action." Connecticut Practice Act, $ 875; Kan- sas, 83 Code Civ. Proc. ; Minnesota, 4739 St. 1891 ; Missouri, 2040 Rev. Sts. (1889); Nebraska, 87 Code Civ. Proc. ; North Carolina, 267 Code Civ. Proc.; North Dakota, 136 Code Civ. Proc.; South Dakota, 136 Code Civ. Proc.; Ohio, 5019 Rev. Sts., except, in addition, that claims for the parti- tion of real property may be united ; Oklahoma, 83 Code Civ. Proc.; South Carolina, 188 Code -Civ. Proc.; Wis- consin, 2647 An. Sts. ; Wyoming, 2408 Rev. Sts. " I. Contracts, express or implied. " II. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same. " III. Claims to recover specific personal property, with or without damages for the withholding thereof. " IV. Claims against a trustee by virtue of a contract or by operation of law. " V. Injuries to character. "VI. Injuries to person. "VII. Injuries to property." Cali- fornia , Code Civ . Proc. 427; Idaho, 4169 Rev. Sts. 1887; Montana, 84 Code Civ. Proc. ; Oregon, 91 Code Civ. Proc.; Washington, 214 Code Civ. Proc. " I. Claims arising out of contract, express or implied. "II. Claims for the recovery of spe- cific real property and the rents, prof- its, and damages for withholding the same. " III. Claims for the recovery of specific personal property and dam- ages for the taking or withholding the same. " IV. Claims for partition of real or personal property, or both. "V. Claims arising from injuries to character.' " VI. Claims arising from injuries to person and property. "VII. Claims against a trustee by virtue of a contract or by operation of law." Digest of Statutes Arkansas (1884), 5 OI 4- Kentucky has same, ex- cept VII, 83 Code. " All claims arising ex contractu be- tween the same parties may be joined in the same action, and all claims arising ex delicto may in like manner be joined. The defendant may also set up, as a defence, all claims against the plaintiff of a similar nature with the plaintiff's demand." 3261 Code of Georgia (1882). " Only such causes of action may be joined as are capable of the same char- acter of relief. But actions ex con- tractu shall not be joined with actions ex delicto. In actions ex delicto there shall not be joined actions to recover for injuries to the person, to property, or to character; but they shall be sued for separately." Rev. Sts. Arizona (1887), 670. 181 Joinder under the Codes. ACTIONS. Same Transaction. " struction of all the various Code provisions relative to the joinder of causes of action, and very little contrariety of opinion exists in their application, except in the single case of causes of action arising out of the " same transaction." In the construction of this provision great doubt and division have arisen, and courts have frequently reached diametrically opposite conclusions in regard to the meaning of the word "transaction," and also with reference to its application to various states of facts. But before there is any need to apply this Code provision the courts are fre- quently called upon to determine whether only one or more than one cause of action has arisen out of the same transaction. Of course if only one cause of action has arisen, there can be no " All actions on contracts, express or implied, for the payment of money, whether under seal or not, may be united in the same action." 2672 Civil Code Alabama (1886). " Counts in trespass and in trespass on the case may be joined when they relate to the same subject-matter." 2673 Civil Code Alabama (1886). " Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, provided that they be by the same party, and against the same party in the same rights, and if suit on all may be brought and tried in that county, may be joined in the same petition; but the court, to prevent confusion therein, may direct all or any portion of the issues joined therein to be tried separately, and may determine the order thereof." Rev. Code Iowa (1888), g 2630. " I. Money demands on contract. " II. Injuries to property. "III. Injuries to person or charac- ter. " IV. Claims to recover the posses- sion of personal property, with or without damages for the withholding thereof, and for injuries to the prop- erty withheld. ' ' V. Claims to recover the possession of real property, with or without dam- ages, rents, and profits for the withhold- ing thereof, and for waste or damage done to the land; to make partition of and to determine and quiet the title to real property. " VI. Claims to enforce the specific performance of contracts, and to avoid contracts for fraud or mistakes. "VII. Claims to foreclose mortgages; to enforce or discharge specific liens; to recover personal judgments upon the debt secured by such mortgage or 1 8 lien; to subject to sale real property upon demands against decedents' estates, when such property has passed to heirs, devisees, or their assigns; to marshal assets; and to substitute one person to the rights of another; and all other causes of action arising out of a contract or a duty, and not falling within either of the foregoing classes. " VIII. When the plaintiff desires to recover the possession of title papers or other instruments of writing, or cor- rect any mistakes therein, a separate action may be brought therefor; or the possession of such title papers or other instruments of writing may be recov- ered, or mistakes corrected, in any other action, when such recovery or correction would be essential to a com- plete remedy. " IX. When the action arises out of contract, the plaintiff may join such other matters in his complaint as may be necessary for a complete remedy and a speedy satisfaction of his judg- ment, although such other matters fall within some other one or more of the foregoing classes. When several causes of action are united, belonging to any of the foregoing classes, the court may order separate trials, for the furtherance of justice." Indiana Statutes, Revision 1894, art. 3, Civ. Proc. In Colorado the following causes of action may be united: (i) Ac- tions for the recovery of real property, with damages, rents, profits, etc.; (2) Actions for the recovery of personal property, with damages, etc.; (3) Ac- tions for damages, whether upon con- tract or for injuries to property, per- son, or character. Colorado Code Civ. Proc. , 71 (1883, 73); Bliss Code PI. (2d ed.) 112. Joinder under the Codes. ACTIONS. " Same Transaction." question of joinder or misjoinder, and there is no necessity for the application or construction of the Code provision. 1 b, SINGLE CAUSE OF ACTION Inconsistent Causes of Action. Inconsistent causes of action cannot grow out of the same trans- action. 3 Two Kinds of Relief. A transaction, though, may give rise to two kinds of relief, it being at the option of the plaintiff to pursue either, but not both. 3 1. Single Contract. In suing upon a single contract, although for different items, and for consequential damages, no question can arise as to the appli- cation of the Code provision. Such causes of action are single. Roehring v. Huebschmann, 34 Wis. 185 ; Fisk v. Tank, 12 Wis. 276. Balance Due on Settlement and on Item- ized Account. A petition which alleges that defendant is indebted to plaintiff "to balance due as per settlement," and also on an open itemized account, states two separate causes of action. Eisenhouer v. Estein, 37 Kan. 281. Closely Connected Facts. Generally, it may be said that where facts are closely connected, so that if under equity practice a bill setting them up would not be multifarious, then the transaction gives rise to one cause of action only ; and if certain facts of the transaction, which are demurrable, are set up as a separate cause of action, this does not constitute a misjoinder, as the court may proceed to give judg- ment on the facts of the transaction which make the cause of action. Recovery of Damages and Cancellation of Receipt. A complaint praying for the recovery of damages for personal injuries, and also for the cancellation of a receipt fraudulently obtained from the plaintiff, releasing the defendant from liability for such injuries, states only one cause of action. Whetstone v. Beloit Straw Board Co., 76 Wis. 613. Promise to Marry and Give Sum of Money. Where the defendant prom- ised plaintiff that if she would marry him he would give her a sum of money, his refusal to carry out his promise to marry and pay the money is only one cause of action. Dalton v. Barchand, 2 Clev. Rep. (Ohio) 57. Demurrable Amendment. Where to a petition against several defendants an amendment is filed setting out new matter intended as another and differ- ent cause of action against one only of the defendants, and such new matter is not sufficient to constitute a cause of action, there is no misjoinder of causes of action, but such amend- ment should be disregarded. Haw- kins v. Furnace Co., 40 Ohio St. 507. 2. Smith -u. Hallock, 8 How. Pr. (N. Y. Supreme Ct.) 73; Lewis v. Acker, ii How. Pr. (N. Y. Supreme Ct.) 163^ Inconsistent Counts. It is a misjoin- der of causes of action to sue in one count to compel a corporation to trans- fer stock and permit the holder to have the rights of a stockholder, and in another count to allege that the stock is spurious and an overissue, and claiming damages for its issue. Cin- cinnati, etc., R. Co. v. Third Nat. Bank, i Ohio Cir. Ct. 199. See Citi- zens' Nat. Bank v. New Orleans, etc., R. Co., 9 Cine. L. Bull. (Ohio) 355, 16 Cine. L. Bull. (Ohio) 399. Recovery of Money Bet and for Fraud. The first count alleged that the plaintiff bet money with the defend- ant upon the event of a horse-race, and lost it. The second alleged that he was induced to make the bet by false representations respecting the horse that won the race, made by the defendant and others with whom the defendant conspired to defraud the plaintiff. Held, that as the first cause of action was on contract and the sec- ond in tort, although arising out of the same transaction, they could not be united. Raynor v. Brennan, 40 Hun (N. Y.) 60. 3. " The law may give more than one kind of relief for a single wrong that is, for one cause of action. A doubt as to whether in such case there is not more than one cause of action has arisen where there is really but one wrong as, the non-payment of a debt but where the plaintiff's remed)' is twofold that is, he may bring one or another kind of action and the facts constituting a cause of action in adopt- 183 Joinder under the Codes. ACTIONS. Same Transaction. " Person and Property Injured by Same Negligent Act. A negligent act which causes damage to both the person and the property of the plaintiff gives rise to but one cause of action. 1 Adjacent Landowners Claiming Damages in Solido- Where a dam causes a diversion of water, and thereby causes damage to several ad- jacent landowners, this is sucH a transaction that* the landowners may join in one action for injuries to their land, and claim damages in solido* ing one remedy differ from those which entitle him to relief in the other. As, in enforcing a contract se- cured by mortgage, or suing upon a promissory note given for the pur- chase-money of land, in pursuing one remedy, it is sufficient to aver and prove the contract; while, in seeking the other, the mortgage or the con- sideration of the note must be also averred and proved. And yet there is but one right the right to the money; and one wrong the refusal to pay it." Bliss Code PI. (2d ed.) 114. One Count Waiver of Other Count. Causes of action are improperly joined where the first constitutes a waiver of an element on which the second de- pends; to wit, the first, being for money had and received, necessarily waiving the wrongful conversion which the second must allege, being an action of trover. Dodge v. Glen- denning (Supreme Ct.), 10 N. Y. St. Rep. 8. 1. Injury to Property and Person by Same Negligent Act. Where an injury has resulted both to the person and the property of another from an act of negligence on the part of the defend- ant, both causes of action may be joined in the same complaint. Howe v. Peckham, 10 Barb. (N.Y.) 656. The above is the head-note of the case, but it is misleading. The court distinctly decided that there was only one cause of action, and the fact that the plain- tiff purported to set out two did not vitiate. The facts of the case were, that a person in a wagon was negli- gently run into by another vehicle, resulting in damage to both his person and his wagon. Where a person is driving a horse and wagon, and is negligently run into by the railroad cars, both the driver and the horse being injured, there are two causes of action grow- ing out of the same transaction, which may be united. Rosenberg v. Staten Island R. Co. (C. PL), 14 N. Y. Supp. 476. But a doubt is raised as to whether there are two causes of ac- tion. See remarks of Pryor, J., pas- sim. And see Brunsden v. Hum- phrey, 14 Q. B. Div. 141, where it was held that where a cab-driver was negligently run into by another, and his person and cab both injured, he had two causes of action, one for the injury to his cab and one for the in- jury to his person. Illinois. In Illinois, a common-law state, it has been held that one who has received an "injury to his person and his property by the same negli- gent act may declare for damages as to both injuries in one count, or he . may declare for each separately in different counts. Chicago West Div. R. Co. v. Ingraham. 131 111. 659, where a man in a buggy was run over by a street car. Maryland. In Maryland, also a com- mon-law state, it is held that where different and separate injuries have resulted from the same act or cause, the injuries or damages may be united and counted upon in the same count. Baltimore, etc., R. Co. v. Ritchie, 31 Md. 191. 2. Hellam v. Switzer, 24 S. Car. 39, where it was held the cause of action is single. Action by Several Owners to Restrain Diversion of Water and for Damages. The plaintiffs were owners in severally of certain distinct parcels of land, and the action was brought to restrain the defendant from depriving them of water carried by various ditches to their respective lands, and to recover damages sustained by reason of past diversion of water. Held, that the cause of action for damages was sev- eral as to each of the plaintiffs, and that it could not be joined with the cause of action for an injunction, which was common to all. Barham v. Hostetter, 67 Cal. 272. 184 Joinder under the Codes. ACTIONS. 1 Same Transaction." c. MEANING 05 THE TERM " TRANSACTION." No satisfactory definition has been given of the term " transaction," as used in the Codes. In fact, it seems to have been chosen on account of the very wide scope of its meaning, enabling courts to interpret it in a manner which shall be found most convenient and best cal- culated to promote the ends of justice. By the use of this term it was not intended to overturn all distinctions in actions and rules of pleading, but it is probable that the first subdivision of section 167 of the New York Code was intended to apply to equitable actions, which frequently embrace many complicated acts and transactions, relating to the subject-matter of the action, which it would be desirable to settle in a single controversy. 1 1. " If these actions may be united it must be by virtue of the first subdi- vision of section 167 of the Code. From the nature of the two actions they do not come under either of the other subdivisions. The first subdivision reads as follows : ' 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 they shall arise out of : ist. The same transaction or transactions connected with the same subject of action." This language is very gen- eral and very indefinite. I have ex- amined the various authorities upon this clause, and I am satisfied that it is impracticable to lay down a general rule which will serve as an accurate guide for future cases. It is safer for courts to pass upon the question as each case is presented. To invent a rule for determining what the ' same transaction' means, and when a cause of action shall be deemed to ' arise out ' of it, and what the ' same subject of action' means, and when transactions are to be deemed connected with it, has taxed the ingenuity of many learned judges, and I do not deem it necessary to make the effort to find a solution to these questions. . . . There is cer- tainly ample scope for construction, but it is sometimes difficult to deter- mine what interpretation will best pro- mote the ends of justice. It is prob- able that the primary purpose of this provision was intended to apply to equitable actions, which frequently embrace many complicated acts and transactions relating to the subject- matter of the action, which it would be desirable to settle in a single contro- versy. The clause was not intended to overturn all distinctions in actions and rules of pleadings, and this court has held that an action of trespass, in breaking into a house and opening a trunk, could not be joined with an action on a covenant in a lease for quiet enjoyment, although the act which rendered the defendant liable in both actions was the same. Keep v. Kauf- man, 56 N. Y. 332. In this case it is attempted to unite an action on a stat- ute for a penalty with an action on con- tract. The natures of the two actions are essentially different, although the object to be attained is the same. The facts to establish the liability are en- tirely unlike. The measure of liabil- ity is different ; the defenses are dif- ferent. The rights of the defendant may be seriously prejudiced. Suppose a general verdict is obtained, from whom would the defendant seek con- tribution, from his co-trustees or from his co-stockholders ? Can it be said that these causes of action arose out of the same transaction? If so, what was the transaction ? Was it the formation of the company? That created no lia- bility nor cause of action. Was it the debt of the plaintiff ? That created no liability against the trustees, nor does such liability arise out of it. Was it the failure to file a certificate that the stock was not paid in? If so, there is no connection between that and the transaction which created the liability against the defendant as trustee. An omission to record a certificate that the stock was paid is not, in any sense, the same transaction as the neglect of trustees to file a report of the financial condition of the comparfy. Without attempting to define the terms of the last clause, I do not think that there is any such connection between the trans- 5- Joinder under the Codes. ACTIONS. " Same Transaction." d. DAMAGE TO LAND AND PERSONAL INJURY. Where the same act or transaction has occasioned damage to land and also a personal injury, these two causes of action may be united. 1 e. INJURIES TO REAL PROPERTY AND OTHER CAUSES OF ACTION. Causes of action for injuries to real property and other causes of action have been held joinable as arising out of the same transaction. 3 actions, out of which the causes of action arose in this case, and the ' sub- ject of action ' as to justify uniting the two causes of action. " The causes of action are independ- ent of each other ; the ' transactions ' are different, and there is no legal af- finity between them. The language of the last clause is more applicable to equitable actions where the contro- versy is in respect to specific property, real or personal. It is difficult to de- fine in this case the subject of action.' The object of the action is to recover the debt ; but is the debt the sub- ject of action ? In some sense it per- haps may be so regarded, while in another the subject of action may be regarded the penalty or forfeiture. If the former, there is no natural con- nection between it and the transaction creating the liability. If the latter, it has no connection with the transaction against defendant as a stockholder. The language of the last clause, it seems to me, has no application to this case, and I am confident it was never intended by it to force a connection be- tween such distinct and independent things. It may be convenient for the plaintiff to combine the two causes of action, but looking at the rights of both parties and the rules of law, we cannot think that the Code was de- signed to authorize their union in one complaint." Per Church, Ch. J., in Wiles v. Suydam, 64 N. Y. 177-179. See also the language of Comstock, J., in New York, etc., R. Co. v. Schuyler, 17 N. Y. 604 ; Ashe, J., in Young v. Young, 81 N. Car. 95 ; Sutherland, J., in Adams v. Bissell, 28 Barb. (N. Y.) 386 ; Johnson, J., in Anderson v. Hill, 53 Barb. (N. Y.) 245. 1. A plaintiff having a cause of ac- tion which entitles him to an injunction restraining the unlawful maintenance and operation of a railroad in a street in front of his premises, by reason of its continuous interference with his rights of property, may unite with a demand for such equitable relief and for damages, because of such inter- ference, a claim for a personal injury suffered on a particular occasion from the same wrongful appropriation and use of the highway. Lamming v. Galusha, 135 N. Y. 239. But see Taylor v. Metropolitan El. R. Co., 52 N. Y. Super. Ct. 299. 2. Trespass on Land and Conversion of Personal Property. Where defendants entered upon land occupied by plain- tiff, deprived him of possession, and destroyed and converted certain per- sonal property thereon, these causes of action arose out of the same" trans- action. Policy v. Wilkisson, 5 Civ. Pro. Rep. (B'klyn City Ct.) 135. Damage to Land and for Construction of Bridge. An action to recover dam- ages for the construction of a railroad across a bay between plaintiff's farm and the Hudson River, and one to compel the construction of such a bridge as is required by law over such bay, were held properly joined. Getty v. Hudson River R. Co., 6 How. Pr. (N. Y. Supreme Ct.) 269. Damage to Land. Where a person builds a dam and thereby causes a stream of water to rise so as to over- flow another's land to his damage, such other person has at least two causes of action: first, one for the injuries already caused ; second, an equitable cause of action to restrain by injunc- tion the further maintenance of the dam. And these two causes of action may be united in the same petition, for both arise out of "the same trans- action or transactions connected with the same subject of action." Akin v. Davis, ii Kan. 580. To Eestrain Construction of Telephone Line and for Removal from Street. An action to restrain the completion of a telephone line may be joined with one to remove the incomplete line, as a nuisance, and to restore the street to a condition in sfafu quo, as both arise out of the same transaction. People v. Metropolitan R. Co., 31 Hun (N. Y.) 598. . 186 Joinder under the Codes. ACTIONS. Same Transaction.' /. EQUITABLE REMEDIES ASKED TOUCHING LAND. Where a transaction has given rise to a cause of action for the setting aside of a deed of land, or for the conveyance of land, or for the cancella- tion of an instrument, or for all the relief which a bill in equity might pray for under the chancery practice, all these matters may be joined. All remedies which a bill in equity might for- merly have prayed for touching land may now be sought in the same action. 1 Damage to Land and on Bond. A complaint alleging a cause of action against an elevated railroad company for damages for the construction and operation of its road in the street ad- joining plaintiff's premises, and also a cause of action on a bond given by the company with sureties to pay all dam- ages assessed, is bad for misjoinder ; as it attempts to unite a cause of ac- tion for a tort with one on contract. Hart v. Metropolitan El. R. Co., 15 Daly (N. Y.) 391. 1. For Execution of New Deed and Pos- session of Land. A sheriff executed and delivered to the plaintiff a deed for certain lands sold under execution, of which the plaintiff had become the purchaser. This deed from the sheriff was lost before registration, where- upon the plaintiff brought an action against the sheriff and the party in possession, seeking to compel the exe- cution of another deed and to recover possession of the land. Held, that as the two causes of action grew out of the same transaction, they could be joined. McMillan v. Edwards, 75 N. Car. 80 ; Jennings v. Reeves, 101 N. Car. 447. To Recover Debt and to Set Aside a Conveyance in Fraud of Creditor. An action upon a debt, and another to declare void certain conveyances al- leged to have been made by the debtor in fraud of the complaining creditor, are joinable as arising out of the same transaction. Dawson Bank v. Harris, 84 N. Car. 206. To Set Aside Decree ; to Annul Deeds Executed in Pursuance Thereof ; to Re- cover Possession of the Land ; and for Injunction Against Waste. The follow- ing causes of action may be joined : I. To impeach and set aside a decree for fraud and imposition ; 2. To annul deeds executed by a commissioner to purchasers of land sold under the decree ; 3. To recover possession of the land and to have an account of the rents and profits ; 4. And for an in- junction against waste. England v, Garner, 86 N. Car. 366. Moneys Wrongfully Invested in Land and for a Reconveyance of the Land from Purchasers. A complaint which alleges that plaintiff entrusted defendant with moneys and property for which he has refused to account, and that defend- ant has fraudulently conveyed without consideration lands bought with such moneys, some to B. and some to C., and which seeks a reconveyance of such lands from B. and C., and judg- ment against A. for the amount found due from him on an accounting : Held, not multifarious. Blake v. Van Til- borg, 21 Wis. 672. Action by Receiver for Restitution of the Property, of the Judgment Debtor, and to Set Aside Conveyances Void for Usury. In an action brought by the receiver of a judgment debtor, the subject of such action being the resti- tution of the property of the judgment debtor, the plaintiff may unite in his complaint all the different claimswhich he has against the defendant upon that subject of action, and set forth therein different transactions out of which his right to restitution flows ; although to reach that result, in some instances, it will be necessary to set aside transfers void for usury. Palen v. Bushnell, 46 Barb. (N. Y.) 24. Action to Quiet Title and for Money. An action was begun, by one holding a tax title to land, to quiet the title to the same against the original owner, and, on service by publication only, he obtained a judgment. Within three years the judgment was properly vacated on the application of the de- fendant under the provisions of 77 of the Code. When the defendant was let in to defend he filed an answer setting up, first, a general denial ; second, facts showing the plaintiff's title in the land to be invalid ; and third, an allegation that after the judgment was first rendered and be- fore it was vacated, the plaintiff sold 87 Joinder under the Codes. ACTIONS. ' ' Same Transaction. " g. COURTS INCLINED TO SEGREGATE REAL PROPERTY CASES. The courts seem to show a disposition to segregate all cases involving land, and deeds and leases of land, from other matters ; they give the term "transaction " a limited and narrow meaning when these matters are in issue. 1 h. ASSAULT AND BATTERY AND SLANDER. If slanderous words are spoken at the time of an assault and battery, then the two causes of action may be united. 2 the land and appropriated the pro- ceeds; and he prayed for a recovery of the value of the land. Held, that the right to the relief prayed for in the third count of the answer was properly joined with the other defenses. Flint v. Dulany, 37 Kan. 332. Payment of Purchase Money and Can- cellation of Mortgage. The following was held to be one transaction : The plaintiff agreed to convey to defend- ant a certain piece of land. The de- fendant paid part of the purchase money and gave his note for the bal- ance. When the plaintiff gave the conveyance there was a mortgage against the property, which the plain- tiff agreed to pay within a reasonable time after the defendant had paid the purchase money. When the purchase note fell due it was not paid, but the defendant offered to pay and did pay part, but required security for the same against the mortgage, and an extension of time .on the note. The plaintiff thereupon, to secure the de- fendant against the mortgage, gave him his note secured by mortgage on other real estate. Held, that the plain- tiff, upon discharging his mortgage, might in one action ask for the bal- ance due on the purchase money, the delivery to him of his note, and the discharge of the mortgage given to secure the same. Montgomery v. Mc- Ewen, 7 Minn. 351. To Declare a Trust in Land and for Bal- ance of Money Due. Plaintiff alleged that he gave to defendant one hundred dollars for the purpose of entering a tract of land, to contain eighty acres at $1.25 per acre ; that the land was to be entered in the name of the plaintiff ; that, in pursuance of said arrangement, said defendant did enter with plaintiff's money a tract of eighty acres, but that the entry was made in the name of the defendant contrary to the agreement, and was made for ten dollars, leaving a balance of ninety dollars due plaintiff. Plaintiff was allowed to join a claim for the money with a claim to declare a trust in his favor in the land. Callaghan v. Mc- Mahan, 33 Mo. in. Action to Declare a Trust, to Recover Purchase Money, and for Possession. An action to declare one defendant a trustee of land, and an action to re- cover judgment of other defendants for purchase money of same, and an action to recover possession of the land Avith damages for withholding it, may be united. Young v. Young, 81 N. Car. 91. See also King v. Far- mer, 88 N. Car. 22 ; Bedsole v. Mon- roe, 5 Ired. Eq. (N. Car.) 313 ; Reggie v. Hill, 95 N. Car. 303 ; Parish v. Sloan, 3 Ired. Eq. (N. Car.), 607 ; Wat- son v. Cox, i Ired. Eq. (N. Car.) 389 ; Hancock v. Wooten, 107 N. Car. 9. Foreclosing Mortgage on one Tract of Land and for Possession of Another Tract. An action to foreclose a mortgage upon one tract of land cannot be united with an action to recover the possession of another tract ; they do not arise out of the same transaction. Edgerton v. Powell, 72 N. Car. 64. 1. Keep -v. Kaufman, 56 N. Y. 332, where it was held that a cause of ac- tion for the breach by the landlord of a covenant of quiet enjoyment con- tained in the lease could not be joined with a cause of action for the land- lord's unlawfully entering the apart- ments leased and injuring the lessee's property therein. See opinion of Ra- pallo, J., passim. For Recovery of Possession of Land and Damages for Forcible Evicton. A claim for damages for a personal tort cannot be united with a demand properly cog- nizable in a court of equity, in the same action, as, for instance, a com- plaint praying for the recovery of the possession of land, and damages for the detention of the land and for forci- ble eviction and expulsion from it, and for the value of improvements erected upon it by plaintiff. Mayo v. Madden, 4 Cal. 27. 2. Brewer v. Temple, 15 How. Pr. (N. Y. Supreme Ct.) 286. But see 1 88 Joinder under the Codes. ACTIONS. " Same Transaction." i. FALSE IMPRISONMENT AND SLANDER. A cause of action for false imprisonment may be joined with a cause of action for slander, where both arise out of the same transaction. 1 j. FALSE IMPRISONMENT AND MALICIOUS PROSECUTION. Causes of action which may be joined may grow out of false im- prisonment and malicious prosecution. 8 k. WARRANTY AND FRAUD. A fraud practised and a warranty made may be so related in time that they constitute the same transaction, and the cause of action for breach of the warranty may be joined with that for the fraud. 3 /. PERSON AND PROPERTY INJURED BY SAME NEGLIGENT ACT. Where the same negligent act injures both another's per- son and property the causes of action may be joined. 4 m. MULTIFARIOUSNESS. Sometimes the doctrine of multifari- ousness in equity practice is invoked to determine whether causes of action grow out of the "same transaction." If all the causes the opinion of Harris, J., at p. 287, where he says that slander spoken at the time of an assault and battery really constitutes a part of the res gesttz, and that there is only one cause of action, not two. He holds that, however numerous the blows or va- rious the injuries, the whole matter constitutes but a single cause of action. Contra, Perroteau v. Johnson, 4 N. Y. Month. L. Bull. 25; Anderson v. Hill, 53 Barb. (N. Y.) 238. At common law they could not be united, because the remedy for one was case, and for the other, trespass. Dragoo v. Levi, 2 Duv. (Ky.) 520. 1. Harris v. Avery, 5 Kan. 146. The facts of this case were that de- fendant met plaintiff, and, in the pres- ence of several other persons, called him a thief ; said he had a stolen horse took the horse from him and kept it four or five days; arrested plaintiff and confined him in the coun- ty jail four or five days. See also Watts v. Hilton, 3 Hun (N. Y.) 606, where libel and false imprisonment were joined. 2. Barr v. Shaw, 10 Hun (N. Y.) 580; Haightz/. Webster, 18 N. Y. Wkly. Dig. 108. See Watson v. Hazzard, 3 Code Rep. (N. Y.) 218, where slander and malicious prosecution were joined. Contra, Nebenzahl v. Townsend, 6l How. Pr. (N. Y. C. PI.) 353. 3. Humphrey v. Merriam, 37 Minn. 502. An action for deceit in the sale of a horse may be joined with one for breach of warranty in the sale of the same horse. Ashe v. Gray, 90 N. Car. 137; Ashe v. Gray, 88 N. Car. 190. See also Scott v. Brown, 3 Jones (N. Car.) 541, 67 Am. Dec. 256; Bullinger v. Marshall, 70 N. Car. 526 ; Froelich v. Southern Express Co., 67 N. Car. i. In Sweet v. Ingerson, 12 How. Pr. (N. Y. Supreme Ct.) 331, it was held that a count in assumpsit on an alleged warranty of a horse, and a Count for fraud in concealing the defects of the same horse, were inconsistent and could not be joined. See also Sey- mour v. Lorillard, 8 Civ. Pro. Rep. (N. Y. Supreme Ct.) 90. Fraud and Money Had and Received. To a count in deceit, the plaintiff may join one for money had and received arising out of the same transaction. Woodbury v< Deloss, 65 Barb. (N. Y.) 501. A cause of action for fraud and deceit in inducing the plaintiff, a bank, to purchase the notes of an in- solvent firm upon false representations that it was prosperous cannot be uni- ted with a cause of action for money had and received, where the allega- tions are that such insolvent firm had given to the defendant money with- which to pay the firm notes which were held by the plaintiff, and that the defendant had not done so, but had converted the money to his own use. They do not arise out of the same transaction. American Nat. Bank v. Grace, 64 Hun (N. Y.) 22. 4. Howe v. Peckham, 10 Barb. (N. Y.) 656; Rosenberg v. Staten Island R. Co. (C. PL), 14 N. Y. Supp. 476. See b. SINGLE CAUSE OF ACTION, supra. 189 Joinder under the Codes. ACTIONS. " Same Transaction." of action could have been embraced in an equity bill without making it multifarious, then the matters may be joined under the Codes, as having arisen out of the same transaction. 1 n. TRANSACTION MUST GIVE CAUSES OF ACTION IN SAME RIGHT. Two causes of action arising out of the same transaction cannot be joined unless the plaintiff sues in the same right, either in a representative or in an individual capacity. 2 o. CALIFORNIA. California has no provision in her Code al lowing a joinder of causes of action growing out of the "same transaction," but this omission is supplied by judicial construc- tion, which allows such joinder. 3 p. MISCELLANEOUS. In the note will be found a collection of miscellaneous cases where it was held that the causes of action either did or did not arise out of the same transaction, and were either properly or improperly joined. 4 1. Lamming v. Galusha, 135 N. Y. 239, 244; Douglas County i>. Wai- bridge, 38 Wis. 179; Clarke. Covenant Mut. L. Ins. Co., 52 Mo. 272; May- berry v. McClurg, 51 Mo. 256; Gray v. Dougherty, 25 Cal. 266; Wilson v. Castro, 31 Cal. 420. See also Flynn v. Bailey, 50 Barb. (N. Y.) 73, where it was held that it must appear by proper statement that the causes of action arose out of the same trans- action; a mere general allegation that they so arose is not sufficient. 2. A claim in favor of the plaintiff individually cannot be joined with one held by him in his representative char- acter as executor of a third person, though arising out of the same trans- action. Hall -v. Fisher, 20 Barb. (N. Y.) 441; Lucas v. New York Cent. R. Co., 21 Barb. (N. Y.) 245. Action as Executrix and as Devisee. A plaintiff may unite a cause of action as executrix with one as devisee, where both accrued under a contract made by the testator with the defend- ant, growing out of the same matter. The plaintiff was allowed to sustain her action as devisee against the de- fendant for the rent of a farm leased to the defendant by the testator, which had accrued subsequent to the testa- tor's death; and also to sustain her action as executrix against the de- fendant for breaches of covenants in the lease, to repair the buildings. Armstrong v. Hall, 17 How. Pr. (N. Y. Supreme Ct. 176. 3. Jones v. Steamship Cortes, 17 Cal. 487, 79 Am. Dec. 142. The fol- lowing is the head-note of the case: " All matters arising from and con- stituting part of the same transaction may be litigated in the same action. Every action, under our system, may be termed an action on the case, and any ground of relief which can be re- garded as part of the case may be in- cluded in the action. Under our sys- tem, a cause of action in tort may be united with a cause of action on con- tract, if the two causes of action arise out of the same transaction. Thus, in an action for breach of a contract to convey plaintiff from San Francisco to San Juan del Sur, in Nicaragua, plaintiff may recover not only the direct pecuniary loss resulting from the breach of the contract, but also damages for any fraudulent or op- pressive conduct on the part of de- fendants producing -great bodily or mental suffering." 4. Harboring Wife, Conversion, etc. The plaintiff may unite in the same complaint, as causes of action arising out of the same transaction : (i) The harboring and maintaining his wife ; (2) The conversion of certain personal property to which the plaintiff is en- titled jure mariti ; (3) Inducing the wife, while harbored and maintained, to execute to defendant a deed for land, under which he had received the rents ; and (4) Converting to defend- ant's own use certain mules and farm- ing utensils set out in a marriage set- tlement executed by plaintiff and his wife. Hamlin v. Tucker, 72 N. Car. 502. Unlawful Acts by County Treasurer and Ms Deputy. A county treasurer un- 190 Joinder under the Codes. ACTIONS. Penalties. 3. Penalties. Under the Codes of practice actions to recover lawfully seized and sold the property of the plaintiff, by virtue of his office of county treasurer, on a warrant for the collection of taxes ; and the deputy of the treasurer also unlawfully seized and sold the property of the plaintiff on a warrant for the collection of taxes. The two causes of action were allowed to be joined. Freeman v. Webb, 21 Neb. 160. Breach of Contract and Injuries to Property. Separate causes of action arising out of breach of contract and injuries to property, the subject of the contract, entrusted to another to en- able him to perform it, may be joined. Badger v. Benedict, i Hilt. (N. Y.) 414. Proceedings by the Committee of the Property of an Incompetent. A com- plaint by the committee of the property of an incompetent, for the purpose of ascertaining the extent of the latter's interest in the property, and the valid- ity and extent of the liens thereon held by various creditors, is not de- murrable as improperly joining causes of action. Holmes v. Abbott (Su- preme Ct.), 6 N. Y. Supp. 943. Moneys Due on Settlement and for Money Paid. A settlement between plaintiff and defendant, and a promise by the latter to pay the amount thus found to be due to the former ; and a cause of action based upon the pay- ment by the plaintiff, after the said settlement, of moneys for the use of the defendant, held, a proper joinder. Brown v. Chadwick, 32 Mo. App. 615. Action to Quiet Title to Bonds, for their Registration, etc. A complaint alleged that the plaintiffs were pledgees of cer- tain bonds, for full value and before maturity ; that the executors of an estate served notice on the makers that the bonds belonged to their tes- tator's estate, from which they had been wrongfully abstracted by the pledger ; and that by reason of the notice the maker refused to recognize the pledgees' interest ; and prayed that the pledgees' title be quieted, that the maker be required to register the bonds in the name of the pledgees, and that the executors be declared to have no title. The complaint was held good, as all the causes of action grew out of one transaction. New- combe v. Chicago, etc., R. Co. (Su- preme Ct.), 8 N. Y. Supp. 366. Action against Stockholder. A com- plaint setting forth facts sufficient, and seeking to charge defendant, as a stockholder of a manufacturing corporation organized under the gen- eral laws (chap. 40, Laws of 1848), with a debt of the corporatipn, because of a failure to make and record the certificate required by said act, and also alleging the requisite facts, and seeking to charge him, as trustee, with the debt, because of failure to file an annual report, contains two causes of action, one upon contract, and one upon a statute for a penalty, which cannot be joined. Wiles v. Suydam, 64 N. Y. 173- Action by Consignees against Carrier. Consignees of goods and holders of the bill of lading, who have made ad- vances upon it, have an interest or property in the goods, which will en- title them to bring an action against the carrier for the loss, waste, or wrongful conversion thereof. Such a cause of action may be joined with a claim to recover back a sum overpaid by the plaintiffs to the defendants on account of the freight of the goods. Adams v. Bissell, 28 Barb. (N. Y.) 382. To Set Aside Award and for Money Due. A complaint demanded (i) A certain sum alleged to be the balance due to the plaintiffs upon a building contract; (2) Payment for extra work and ma- terials ; (3) Damages sustained by rea- son of having been hindered and de- layed by the defendants in the com- pletion of the work ; (4) That a certain award, njade by the arbiter mutually chosen, in relation to certain disputes growing out of the contract should be set aside as obtained by fraud. All these were allowed to be joined as arising out of the same transaction. See i>. Partridge', 2 Duer (N. Y.) 463. For Reformation of Insurance Policy and for its Enforcement. An action in equity to reform a policy of insurance can be joined with one at law for re- covery upon the reformed policy. They arise out of the same transac- tion. McHovey v. German Ins. Co., 44 Mo. App. 426. To Set Aside Release and for Recovery of Damages. Under the Code a count in equity to set aside a release of dam- ages for personal injuries can be joined with one at law for the recovery of the damages. They arise out of 191 Joinder under the Codes. ACTIONS. Penalties. penalties given by statute and by express contract are causes of the same transaction. Blair v. Chi- cago, etc., R. Co., 89 Mo. 383. Cancellation of Spurious Certificates of Stock. Causes of action for the can- cellation of spurious certificates of stock in a corporation may be joined in one action. New York, etc., R. Co. v. Schuyler, 17 N. Y. 592. Action to Recover for Duress of Ancestor in Making Will and for False Represen- tations in Securing Waiver to Probate of Will. A joinder in one complaint of a cause of action arising from duress and restraint exercised over plaintiff's ancestor in inducing him to execute a will, and a cause of action arising from false representations made to plaintiff, by reason of which plaintiff waived all objections to the probate of such will, is proper. Hay v. Hay, 13 Hun (N. Y.) 315. Action to Recover as Surviving Partner, as Assignee of a Claim, and for the Breach of an Arbitration Agreement. Plaintiff sued as surviving partner for work and labor done, and also as assignee of a third party ; there was also a count to the effect that the defendant had con- sented to submit the above claims to arbitration, but that after divers hear- ings he had revoked the submission, for which damages were claimed. Held, that all these causes of action arose out of the same transaction. Kent v. Crouse (Supreme Ct.), 5 N. Y. St. Rep. 141. Action for Money Paid on Repudiated Contract. An action to recover moneys paid upon a contract repudiated by plaintiff on the ground of fraud may be united with one to recover* moneys paid on the ground that defendant has refused to perform and has repudiated the contract on his part. Freer v. Denton, 61 N. Y. 492. Two Street Assessments. Two causes of action for enforcing liens for two street assessments, made in San Fran- cisco, on the same lot at different times and on different contracts, and for improving the same street, cannot be joined in the same suit. Dyer v. Barstow, 50 Cal. 652. Action Against Trustee for Unauthorized Acts and One on Bond. A cause of ac- tion against the trustee of an insol- vent savings bank to recover the dam- ages occasioned by unauthorized and illegal investments made by him can- not be joined with a cause of action upon a bond given by him to assist in making up a deficiency in the assets of the bank. French v. Salter, 17 Hun (N. Y.) 546. Attacking a Judgment and Asking Declaration of Trust. A petition con- tained two counts, one alleging that certain shares of stock owned by the plaintiff were purchased at judicial sale by the defendant under a parol agreement that defendant should hold the shares in trust and reconvey the same upon payment of a debt due him from plaintiff ; and the other alleging want of jurisdiction in the court mak- ing such sale, but that defendant, under color- thereof, procured the transfer of the shares on the books of the company, and received dividends thereon in trust for plaintiff. Held, not bad for misjoinder. Williams v. Lowe, 4 Neb. 382. Two Wrongs Causing One Injury. The petition asked damages for . horses killed by defendant's train, and counted upon two distinct wrongful acts as causes of the killing : (i) neg- lect to repair a fence ; (2) negligence in running its train. Held, that the addition of a tort to a separate and distinct act in violation of contract does not deprive the injured party of the right to complain at the same time of both wrongs. Pittsburg, C. & St. L. R. Co. v. Hedges, 41 Ohio St. 233. Bond Given Not to Make Illegal Acts Public. Illegal acts were done during the continuance of a partnership, and a bond was given by the executors of a deceased partner, with one of the defendants, as security to the surviv- ing partners not to make the wrong public ; also, a sum of money was paid to that defendant by this plaintiff out of the estate of the decedent as his security that the executors would keep the bond a good cause of action against all the defendants. Held, that the defendant to whom the money had been paid v could not be compelled to return it unless the bond was can- celled, and that in an action for that purpose the surviving partners must be brought in. Zimmerman v. Kun- kel (Supreme Ct.), 6 N. Y. St. Rep. 768. For Conversion of Property and Pro- ceeds of Sale. A cause of action for the wrongful seizure and conversion of personal property, and a cause of action to recover the proceeds of the 192 Joinder under the Codes. ACTIONS. Judgments Injuries to Character. action arising on contract, and may be joined. They may also be joined with other actions on contract. 1 4. Judgments. Causes of action on judgments are causes of action on contract within the meaning of the Codes, and all such causes of action may be joined with each other or with any other cause of action on contract. 2 5. Injuries to Character. All the Codes allow causes of action for injuries to character to be joined. 3 sale in the hands of the defendants, cannot be joined. Teall v. Syracuse, 32 Hun (N. Y.) 332. Kansas. Where an action was brought before a justice of the peace under art. 13, ch. 81, Comp. Laws of 1885, and there was joined therewith a claim for damages growing out of the same transaction, held, that the proceeding under the Forcible Entry and Detainer Act is a summary one, and cannot be joined with Other causes of action, although such other causes of action may arise out of the same transaction. Ow v. Wickham, 38 Kan. 225. North Carolina. The plaintiff may, but is not compelled to, join separate causes of action arising out of the same transaction. Gregory v. Hobbs, 93 N. Car. i. 1. Cincinnati, etc., R. Co. v. Cook, 37 Ohio St. 265 ; State v. Roberts, 101 N. Car. 774 ; Doughty v. Atlantic, etc., R. Co., 78 N. Car. 22. Action Against Attorney. Actions brought to recover notes placed in the hands of an attorney for collection, and the statutory penalty of 10 per cent, are joinable. Bougher v. Sco- bey, 16 Ind. 151. Against Trustee for Failure to Release After Payment In an action by the grantor in a deed of trust against the trustee and holder of the notes, for failure to make a release after the debt had been paid, claims for damages may be united with claims for a pen- alty. Scott v. Robards, 67 Mo. 289. Against Sheriff. A suit to recover damages, and also the penalty against a sheriff for a failure to execute and return process, may be joined. Pearkes v. Freer, 9 Cal. 642. Tort and Penalty. An action to re- cover damages caused by the roadbed erected by defendant ponding back water onto plaintiff's land cannot be joined with one to recover damages for an alleged breach of duty on the part of defendant in not putting up sufficient cattle-guards as required by the Code, 1975, whereby cattle tres- passed on plaintiff's lands. The first is an action for tort; the other for breach of a statutory duty. Hodges v. Wilmington, etc., R. Co., 105 N. Car. 170. California. The plaintiff cannot unite two or more causes of action for penalties incurred by a toll-gatherer for demanding and receiving too much toll, even if they are separately stated. Brown v. Rice, 51 Cal. 489. Under 2743 of the Political Code, as amended in 1883, a cause of action to abate a nuisance caused by the ob- struction of a public highway, and a cause of action to recover the penalty of ten dollars a day for every day the nuisance remained after notice to re- move it, may be united in the same action. Bailey v. Dale, 71 Cal. 34. 2. Moore v. Nowell, 94 N. Car. 265 ; Childs v. Harris Mfg. Co., 68 Wis. 231. Action to Revive a Decree and One for a Personal Judgment. An action to re- vive a decree, and an action for a personal judgment on the original de- cree, may be joined. Moore v. Ogden, 35 Ohio St. 434. Judgments Against Partnership in Different Names. A firm in Wyoming did business by the name of J. W. D. & Associates, and also as D. S. & Co. Held, in an action against a member of the firm upon a judgment against J. W. D. & Associates, and one against D. S. & Co., that the judgments could be joined in one action. Ruth v. Lowrey, 10 Neb. 260. 3. Libel, Slander, and Malicious Prose- cution. Causes "of action for libel, slander, and malicious prosecution may be joined. They are all injuries to character. Martin v. Mattison, 8 Abb. Pr. (N. Y. Supreme Ct.) 3. See also Shore v. Smith, 15 Ohio St. 173, where a cause of action for slander I Encyc. PI. & Pr. 13. 193 Joinder under the Codes. ACTIONS. Ex Delicto and Ex Contracts 6. Causes of Action Ex Delicto and Ex Contractu. a. GENERALLY. Causes of action arising ex delicto cannot be joined, under the Codes, with those arising ex contractu, unless they arise out of the same transaction. 1 b. COMPLAINT TO BE DRAWN UPON DEFINITE THEORY. It and one for malicious prosecution were allowed to be joined ; they were held injuries to character. Slander at Different Times. Slander- ous words spoken at different times constitute separate causes of action, and should be separately stated. Swinney v. Nave, 22 Ind. 178. See also Alpin v. Morton, 21 Ohio St. 536. But the entire conversation in which slanderous words are published con- stitutes but one cause of action. Cra- craft v. Cockran, 16 Iowa 302. Different Articles. See Fleischmann v. Bennett, 87 N. Y. 231, where the complaint set forth six different alleged libelous articles published at different times. Held, that each constituted a separate cause of action. Libel and Slander. A count in libel may be joined with one in slander. Noonan v. Orton, 32 Wis. 106. Slander and False Charge before Grand Jury. Slander of the plaintiff, and a false and malicious charge against him made before a grand jury, are injuries to character, and may be joined. Hull v. Vreeland, 18 Abb. Pr. (N. Y. Su- preme Ct.) 182. 1. Sturges v. Burton, 8 Ohio St. 215, 72 Am. Dec. 582 ; Tompkins v. White, 8 How. Pr. (N. Y. Supreme Ct.) 520 ; Keep v. Kauffman, 36 N. Y. Super. Ct. 141 ; Butt v. Cameron, 53 Barb. (N. Y.)642 ; Colwell v. New York, etc., R. Co., 9 How. Pr. (N. Y. Supreme Ct.) 311; Booth v. Farmers, etc., Nat. Bank, 65 Barb. (N. Y.) 457 ; Hall v. Fisher, 20 Barb. (N. Y.) 441 ; Ehle v. Haller, 6 Bosw. (N. Y.)66i ; Alger v. Scoville, 6 How. Pr. (N. Y. Supreme Ct.) 131 ; Landau v. Levy, i Abb. Pr. (N. Y. Super. Ct.) 376 ; Sumner v. Tuck, 10 Mo. App. 269 ; Bishop v. Chicago, etc., R. Co., 67 Wis. 610 ; Lane v. Cameron, 38 Wis. 603 ; Kewaunee County v. Decker, 30 Wis. 624. See Siebern v. Meyer (Ohio C. PI.), 26 Wkly. L. Bull. 147 ; Nimocks v. Inks, 17 Ohio 596. Implied Contract. A cause of action in tort cannot be united with one on implied contract, even though arising out of same transaction. Hunter v. Powell, 15 How. Pr. (N. Y. Supreme Ct.) 223. Contract and Fraud. A cause of action in contract against one defendant can- not be united with a cause of action in fraud against both. North Carolina Land Co. v. Beatty, 69 N. Car. 329. Iowa. In Iowa causes of action ex delicto may be joined with those ex contractu. Rev. Sts. 2844 ; Turner v. First Nat. Bank, 26 Iowa 562 ; Jack v. Des Moines, etc., R. C., 49 Iowa 627. But they must have same venue ; see cases supra. Texas. In the system of practice which obtains in Texas the parties are required to settle all their controver- sies in a single suit if practicable. Causes of action ex contractu and ex delicto are joinable. International, etc., R. Co. v. Donalson, 2 Tex. App. Cas. 238 ; Chevallier v. Rusk, Dall. (Tex.) 611 ; Pitts v. Ennis, i Tex. 604 ; Francis v. Northcote, 6 Tex. 185 ; Haggerty v. Scott, 10 Tex. 525 ; Hen- derson v. Morrill, 12 Tex. 3 ; Ponton v. Bellows, 22 Tex. 68 1 ; W. & W. Con. Rep. 1246 ; Craddock v. Goodwin, 54 Tex. 578. For Possession of Property, etc. The plaintiff may join claims for possession of personal property, for exemplary damages, and for reasonable compen- sation for trouble and expense in seek- ing the property. Cox v. Lloyd, i Tex. App. Cas. 123. Conversion and Overcharge in Freight. The following claims may by joined: (i) For the conversion of a bale of cotton ; (2 Overcharge of freight on nine bales of cotton ; (3) Damage done to three buggies in transporting same ; (4) Discrimination in freight on one hundred and fifty bales of cot- ton delivered for transportion. Hous- ton, etc., R. Co. v. Stewart, i Tex. App. Cas. 1246. Alabama. The joinder of counts ex contractti with counts ex delicto is un- affected by statutory provisions, and is good ground for demurrer to the entire complaint. Whilden v. M. & P. Bank, 64 Ala. And see Munter v. Rogers, 50 Ala. 283. Georgia. A claim arising ex delicto cannot be set off against a suit on a draft. Smith v. Printup, 59 Ga. 610. 194 Joinder under the Codes. ACTIONS. Ex Delicto and Ex Contractu. is often difficult to determine from the allegations of a complaint whether an action ex contractu is joined with one ex delicto. Where a tort is committed, it is often optional with the plaintiff to waive the tort and sue on the implied contract, and join with this any other cause of action on contract. 1 A complaint must proceed upon a definite theory, the cause must be tried upon the theory constructed by the pleadings, and such a judgment as the theory selected warrants must be rendered, and no other or differ- ent one. 2 c. CASES INVOLVING CONVERSION OF PROPERTY. The courts apply a rather strict rule in cases of the conversion of property, holding that this is a cause of action ex delicto which cannot be joined with one ex contractu. The complaint is usually construed as proceeding for the tort, and not on the implied contract. 3 1. Logan v. Wallis, 71 N. Car. 416; Shirley v. Waco Tap R. Co., 78 Tex. 131. 2. A complaint seeking a recovery against some of the defendants upon a money demand for goods sold and de- livered, and auxiliary equitable relief against other defendants as fraudulent judgment plaintiffs and vendees, does not entitle the plaintiff to a judgment for damages against all the defen- dants. Feder v. Field, 117 Ind. 386. Evidence only Adduced to One Para- graph. If the evidence is only adduced to one of two paragraphs of the com- plaint, and the case is tried upon the theory set forth in such paragraph.it is immaterial that other paragraphs are improperly joined with such para- graph. Carter v. Lacy, 3 Ind. App. 54- Suing on One Cause and Recovering on Another. Under the Code one cannot sue on one cause of action and recover on another. He cannot sue for an in- jury and recover on a contract, express or implied, or vice versa. Sumner v. Rogers, 90 Mo. 324. 3. Action for Accounting and Settlement of Accounts, with Action against Sureties for Converting Property. A cause of ac- tion against the board of county com- missioners of a county in favor of one who had been treasurer thereof, for an accounting and settlement of his accounts as such treasurer, cannot be joined with a cause of action in his favor, against the sureties on his of- ficial bond, for wrongfully converting property deeded by him in trust for the protection of said sureties from loss as sureties on said official bond. Rizer v. Davis County, 48 Kan. 389. Recovery from Bondsmen of Constable for Illegal Levy and against Constable for Conversion. Where a deputy con- stable levies an execution upon prop- erty belonging to a person other than the execution debtor, and such per- son then commences an action for damages for the wrong against the constable and his sureties and the said deputy, and in his petition in one count sets forth a cause of action against the constable and his sureties on the constable's bond, and also a cause of action against the constable and his deputy for the tort committed by the deputy, held, that the two causes of action were improperly joined. Hoye v. Raymond, 25 Kan. 665. Tort and Money Had and Received. A claim arising out of an alleged tort cannot be joined in the same action with a claim for money had and re- ceived, the rule of the Code being that plaintiff may join all causes of action of like nature; causes ex delicto cannot be joined with causes ex. contractu. Teem v. Ellijay, 89 Ga. 154; Croghan v. New York Underwriters' Agency, 53 Ga. 112. Conversion by Carrier and Breach of Contract to Carry. A cause of action for damages for negligence in not taking proper care of a sum of money delivered to him to be kept, which he agreed to take care of, but which he lost through gross carelessness, and failed to redeliver upon demand, is a cause of action for breach of contract., and cannot be joined with a cause of action for the conversion of the money to the use of the defendant. Stark v. Wellman, 96 Cal. 400. 195 Joinder under the Codes. ACTIONS. Ex Delicto and Ex Contractu. d. MISCELLANEOUS. In the note will be found a collection of cases which, while affirming the general principle that tort and -contract cannot be joined, involve questions of construction, whether the cause of action sounds in tort or on contract, and whether there has been a proper or an improper joinder. 1 Claim against Trustee for Surplus on Foreclosure and for Conversion. A claim against a trustee for surplus on fore- closure cannot be united with one for conversion of the property sold. Pettit v. King, Seld. Notes (N. Y.) 222. Breach of Contract to Sell Goods and Trover. A cause of action for a breach of contract to sell and deliver a quan- tity of goods cannot be joined with one in trover. Bennett v. Taintor, 8 Law Rep. 553- Claim against Trustee cannot be Joined with one for Conversion of Note. A claim against the defendant as trustee cannot be joined with one for taking possession of, collecting, and convert- ing the proceeds of a note belonging to plaintiff. Jasper v. Hazen, 2 N. Dak. 401. Conversion and Accounting. A cause of action for the conversion of personal property cannot be joined with a claim for an accounting between principal and agent. Thompson v. St. Nicholas Bank, 61 How. Pr. (N. Y. Supreme Ct.) 163. Sale of Real Estate and Conversion. A cause of action arising out of a breach of contract on a sale of real estate can- not be joined with one arising out of a wrongful conversion of personal prop- erty. McDonald v. Kountze, 58 How. Pr. (N. Y. Supreme Ct.) 152. Recovery of Personal Property and Con- version. A plaintiff cannot so frame his complaint as that, if he fails to re- cover the possession of his personal property, he can recover damages for the conversion. Maxwell v. Farnam, 7 How. Pr. (N. Y. Supreme Ct.) 236. Fraudulent Taking of Honey and for Lien' on Land in which it was Invested. It seems that a cause of action for the fraudulent taking of plaintiff's money and appropriating the same to the purchase of real estate, and taking the title to the same in the name of the defendant's wife, and praying for a judgment and that a lien be declared on the real estate, may be joined with a cause of action for a judgment for the money so appropriated. File v. Springel, 132 Ind. 312. Petition Omitting Allegations of Con- version. A petition in an action upon a promissory note, reciting the consid- eration of the note and the disposition of property for which it was given, but not alleging that there was a "wrongful conversion " of the prop- erty, is not subject to objection by de- murrer on the ground that " an action on a promissory note and an action of trover are improperly joined." Lash v. Christie, 4 Neb. 262. 1. For Value of Stock Received and for Breach of Trust. Causes of action in tort and in contract cannot be joined ; as, an action for specific performance of a contract, one for the value of stock received under a resolution of a board of directors, and one for breach of trust in no wise connected with the other causes of action, can- not be joined. Hannahs v. Hammond (Supreme Ct.), 19 N. Y. Supp. 883. Contract and Injury to Property. A cause of action founded upon a con- tract cannot be united in the same count with a cause of action founded upon an injury to property. Ederlin v. Judge, 36 Mo. 350 ; Jamison v. Copher, 35 Mo. 483; Hoagland v. Han- nibal, etc., R. Co., 39 Mo. 451. Trespass and Injunction. A cause of action for damages for a trespass, and a cause of action for an injunction to restrain further or additional trespass threatened to be committed upon the same property, may be joined. Jacob v. Lorenz, 98 Cal. 332. Fraud and Breach of Covenant. A cause of action for costs incurred in having to bring suit against the de- fendant for specific performance of an agreement to reconvey certain prem- ises, a cause of action based upon al- leged fraud, malice, and oppression of the defendant, and a cause of action arising from the breach of the defend- ant's written covenant of warranty of property conveyed to the plaintiff, can- not be united. Cosgrove v. Fisk, 90 Cal. 75. To Set Aside Conveyance for Fraud and for Accounting under Assignment. A suit to set aside, on the ground of fraud, a conveyance by a debtor of land not included in his assignment for t-he. 196 Joinder under the Codes. ACTIONS. Causes Arising Ex Contractu. 7. Causes of Action Arising Ex Contractu. All causes of action benefit of creditors, should not be joined with a suit for an accounting under the assignment. Hatcher -v. Winters, 71 Mo. 30. To Set Aside Bond Wrongfully Ex- torted, and to Kecover Trust Money. Actions to set aside a bond wrongfully extorted, and to recover trust money deposited with the surety thereon with- out authority, may be joined. Zim- merman v. Kinkle, 108 N. Y. 282. Exemption from Imprisonment. Where the plaintiff unites in his suit causes of action upon contract and in tort, and a general verdict and judgment are rendered in his favor, it seems that the defendant is exempted by the Non- imprisonment Act from imprisonment upon the execution. Miller v. Scher- der, 2 N. Y. 262. For Reconveyance and for Damages in Fraudulent Sale. The vendor of land cannot unite in the same action a claim against the broker for damages for having fraudulently sold the land, with a claim against the purchaser for a re- conveyance or accounting. Gardner v. Ogden, 22 N.Y. 327, 78 Am. Dec. 192. Against Partner for an Account and Appropriation to Firm Debts. In a suit against a partner for an account, the plaintiff may join a demand for the appropriation of the firm assets to the partnership debts. Davis v. Grove, 2 Robt. (N. Y.) 136; Wade v. Rusher, 4 Bosw. (N. Y.) 537- Negligence in the Performance of a Contract may Constitute an Action Ex Delicto. A count in a complaint, set- ting out a contract for the carriage of horses and payment of the freight thereon, and alleging that the defend- ant so negligently and carelessly car- ried said horses that one of them was killed, states a cause of action ex de- Jicto, although the amount paid for freight is included in the sum for which judgment is asked, and such cause of action maybe joined with one for neg- lecting to fence a railroad, by reason whereof an ox of plaintiff was killed. Rideout v. Milwaukee, etc., R. Co., 81 Wis. 237. Statute Making Directors Personally Liable for Debts. There is no misjoin- der of causes of action where a single action is brought upon a note and upon an account, against a debtor corpora- tion, and also against its directors, who are made by the act of incorpora- tion jointly and severally liable for the debts of the corporation. Sullivan v. Sullivan, 14 S. Car. 494. See also a very learned and elaborate opinion on the subject of multifariousness by the Hon. John A. Inglis, printed as a foot- note to the case of Suber v. Allen, 13 S. Car. 317. Damages for not Delivering Cattle and for Injury while being Carried. A pe- tition for not safely delivering cattle, and also for damages in having put the cattle in a yard infected with a cattle disease, whereby they became infected, states but one cause of action. Bald- win v. Railway Co., i Clev. Rep. (Ohio) 178. Breach of Covenant in a Lease and Trespass. An action for a breach of a covenant in a lease cannot be joined with one for trespass on the demised premises. Week v. Keteltas, 10 Civ. Pro. Rep. (N. Y. C. PL) 43. Negligence and Rent. A cause of ac- tion for negligence cannot be joined with one upon contract for rent. Comp- ton v. Hughes, 38 Hun (N. Y.) 377. Rescission of Contract and Accounting. A claim for the rescission of a contract on the ground of fraud cannot be joined with one for an account under it. Van Liew v. Johnson, 4 Hun (N. Y.) 415- Against Trustee for Conversion and as Trustee of the Proceeds of Property. A claim against the defendant as trustee of the proceeds of property cannot be joined with one for the wrongful con- version of it. Pettit v. King, Seld. Notes (N. Y.) 222. Against Sheriff and Bondsmen. If the complaint in an action against a sheriff and his official bondsmen alleges only a cause of action against him as a tres- passer, and against his sureties as sign- ers of the bond, and not otherwise, there is a misjoinder of causes of ac- tion. Ghiradelli v. Bourland, 32 Cal. 585. Contract and Neglect of Duty. Dam- ages for breaches of contracts and for neglect of duty cannot be united in the same complaint. Loup v. California, etc., R. Co., 63 Cal. 99. See also Shel- don v. Steamship Uncle Sam, 18 Cal. 526, 79 Am. Dec. 193. Indiana. Under section 280 Rev. Sts. 1881 a paragraph of complaint declar- ing upon a guardian's bond and asking judgment may be joined with other 197 Joinder under the Codes. ACTIONS. Causes Arising Ex Contracttu arising ex contractu, whether on sealed instruments or on simple contracts, or on both, may, under the Codes, be joined. 1 paragraphs also declaring on the bond and attacking conveyances made by the surety as fraudulent, with a prayer that they be set aside. Bowen v. State, 121 Ind. 235. Missouri. A count for a breach of warranty in a sale is not inconsistent with one for damages caused by a frau- dulent misrepresentation in the same sale ; nor is the joinder thereof contrary to section 6137 of the Rev. Sts. of 1889, which prohibits the joinder, in justices' courts, of a cause of action founded upon a contract with one founded upon trespass to the person or to real or per- sonal property. Spangler v. Kite, 47 Mo. App. 230. 1. Sutton v. McMillan, 72 N. Car. 102; Keller v. Hicks, 22 Cal. 457, 83 Am. Dec. 78; Waterman v. Waterman, 81 Wis. 17; Remy v. Olds, 88 Cal. 537; Cowan v. Abbott, 92 Cal. 100; Clark v. Ryan, 95 Ala. 406; Buford v. Funk, 4 Greene (Iowa) 493; Bowman v. Hol- laday, 3 Oregon 182; Dabams v. Sears, 13 Oregon 47; Cohen v. Otten- heimer, 13 Oregon 220; Powell v. Dayton, etc., R. Co., 13 Oregon 446; Stevens v. Able, 15 Kan. 584; Schil- ling v. Black, 49 Kan. 552; Hoye v. Raymond, 25 Kan. 665; Parmerter v. Baker(SupremeCt.), 8 N. Y. Supp. 69; State v. Schneider, 35 Mo. 533; Wright v. Baldwin, 51 Mo. 269; Aycock v. Austin, 87 Ga. 566; Gabel v. Hammer- well, 44 Ala. 336; Danforth v. Tennes- see, etc., R. Co., 93 Ala. 614. Two Claims, One Held under Assign- ment. A cause of action for work and labor performed by the plaintiff for the defendant, and a cause of action for work and labor performed for the de- fendant by an assignor of the plaintiff, may be united in the same complaint. Fraser v. Oakdale Lumber, etc., Co., 73 Cal. 187. On Note to Plaintiff and on Assigned Note, the Assignor Being a Necessary Party to the Latter Claim. A count on a note made by defendant to plaintiff may be united with a count on a non- negotiable note made by defendant to a third person, and by him assigned to plaintiff, although the assignor is a necessary defendant and is not af- fected by the first count. Myers v. Miller, 2 West L. Month. (Ohio) 420. Account Divided by Agreement. Where, by agreement, an account for goods sold on the same day was divided into four distinct parts, due on different days, the creditor had a right of action on each as it fell due, and if he waited until all had fallen due, he might sue on them separately or unite them, and he was not com- pelled to unite them so as to prevent the jurisdiction of a justice's court. Parris v. Hightower, 76 Ga. 631. Against Eailroad as Carrier and Ware- houseman. A cause of action against a railroad company as carrier for loss of goods, and against same company as -warehouseman for other goods de- stroyed by fire, need not be joined. Kronshage z/. Chicago, etc., R. Co., 45 Wis. 500. As Surviving Partner and Individually. The surviving partner in a law firm can sue for the amount due for ser- vices rendered by the firm before the dissolution of the firm by the death of one of its members, and can join in the same action a claim for what is due him individually for services rendered under the same contract after the death of his partner. O'Brien v. Gil- leland, 79 Tex. 602; Stachely v. Peirce, 28 Tex. 328. Upon Two Official Bonds. A complaint in an action upon two official bonds given for separate terms of office, against a clerk and a single surety to both bonds, alleging misapplication of funds paid into the clerk's office dur- ing the two terms, is not demurrable for misjoinder of causes of action. Syme v. t Bunting, 86 N. Car. 175. Bonds 'of Officer with Different Sureties. One S. was elected treasurer of a school district, and executed a bond to the district with two sureties condi- tioned as required by law. After- ward, and during the same term of office, he executed and delivered to the district an additional bond with new sureties. In an action against the principal and sureties on both bonds for a default of the treasurer, occur- ring after the execution of the second bond, held, that they were properly joined. Holeran v. School District No. 17, 10 Neb. 406. Account and Note Indorsed as Collateral Security. A cause of action upon a 198 Joinder under the Codes. ACTIONS. Injuries to Property. 8. Divorce Proceedings. Divorce proceedings are in the nature of special proceedings, and it seems to be the policy of the courts to confine all matters arising therein within a limited range, and the joining of other matters is discouraged. 1 9. Injuries to Property. Actions for injuries to property may be united. But the Codes generally segregate the two kinds of prop- erty, and only allow a joinder of causes of action arising from either injuries to personal property or injuries to real property, but not from both. A cause of action for an injury to personal property cannot be joined with one for an injury to real prop- erty. 2 note may be joined with one upon an account. Thorpe v. Dickey, 51 Iowa 676. But such causes of action cannot be joined where the parties to the note are not all parties to the account, even though the note was indorsed as col- lateral security for the account. Thorpe v. Dickey, 51 Iowa 676. Assessments. If several tracts of swamp land, of the same owner, be separately assessed under one assess- ment, the assessments on the several tracts may be recovered in one action. People v. Hagar, 52 Cal. 171. And two assessments for reclamation pur- poses in a swamp-land district, made on the same land at different times, may be recovered in the same action. Swamp Land Co. v. Feck, 60 Cal. 403. Against Partners. A cause of action against a partnership cannot be united with a cause of action against the same partnership, where a new mem- ber is taken in who is only liable on one cause of action. Benton v. Win- ner, 69 Hun (N. Y.) 494. Account not Due. When the plain- tiff's petition states three separate demands, the first two on promissory notes past due, and the third on an account not due, there is a misjoinder of causes of action. Wurlitzer v. Suppe, 38 K'an. 31. Two Bonds. A complaint in which are joined two causes of action, the one upon a clerk's bond, and the other upon a bond of an administrator, is a misjoinder. Street v. Tuck, 84 N. Car. 605. Against Two Insurance Companies, One on Eeinsurance Policy. A cause ef action against an insurance company on an original policy cannot be joined with a suit against another company on a reinsurance policy. Lee v. Fra- ternal Mut. Ins. Co., I Handy (Ohio) 233. 1. Equitable Relief. Equitable relief cannot be prayed for in a divorce case. Dunbar v. Dunbar, i Clev. Rep. (Ohio) 148. For Absolute Divorce and for Annul- ment of Separation Deed. A cause of action for an absolute divorce cannot be united with one for the annulment of the deed of separation. Galusha v. Galusha, 138 N. Y. 281. To Annul Marriage and to Quiet Title. The plaintiff cannot unite a cause of action to annul a marriage by reason of a former marriage of the plaintiff to one who is still alive, with a cause of action to quiet her title to her separate property, in which the defendant falsely claims an interest. Uhl v. Uhl, 52 Cal. 250. For Divorce and to Set Aside Convey- ances. In an action for divorce and alimony it is not an improper joinder of causes of action to seek at the same time to set aside certain fraudulent conveyances on which an award of alimony is dependent. Prouty v. Prouty, 4 Wash. 174. 2. See Code provisions, supra, 1, CODE STATES. What is an Injury to Personal Prop- erty. A cause of action for the con- version of personal property may be united with one for false and fraudu- lent representations, inducing plain- tiff to execute a bond and a mortgage on his real estate, to secure its pay- ment in favor of a third person, for whom defendant delivered them for a consideration this under the Code al- lowing causes of action for injuries to personal property to be joined. De Silver v. Holden, 50 N. Y. Super. Ct. 236. Causes of action for deceit in the sale of a canal-boat and horses by the defendant to the plaintiff, and for taking certain personal property of the plaintiff's from such canal-boat, 199 Joinder under the Codes. ACTIONS. To Recover Keal Property. 10. Actions to Recover Real Property. The plaintiff may unite in the same complaint two or more causes of action where they and converting the same, may be united, as they are both for injuries to property. Cleveland v. Barrows, 59 Barb. (N. Y.) 364. Cutting Wood. A cause of action f r cutting and removing timber, and one for removing firewood already cut, and converting it, followed by aver- ments of injury to the inheritance and reversionary interest of the plaintiff, may be united, as the causes of action arise out of " injuries with or without force to property." Rodgers v. Rod- gers, ii Barb. (N. Y.) 595. Action for Deceit and for Waste. De- ceit in the sale of a horse is an injury to property without force, within the meaning of subd. 3, sec. 2647, Rev. Sts. , and a cause of action therefor may be united with a cause of action for an injury to realty by waste. Gilbert v. Loberg, 83 Wis. 189. Injuries to Real Estate. The com- plaint set forth two causes of action, one for a wrongful entry upon plain- tiff's lands under water and wrongfully carrying away fish therefrom, the other for a like entry on plaintiff's land and catching and killing musk- rats thereon. Held, that as both causes of action were for injuries to real estate, they were properly united. Whatling v. Nash, 41 Hun (N. Y.) 579. Breach of Duty in Neglecting to Build Crossing. An action to recover dam- ages caused by an embankment erected by defendant upon its land, which turned the waters of a stream and caused them to flow over plaintiff's premises, cannot be joined with one to recover damages for a breach of duty in neglecting to erect and main- tain a farm crossing. The first cause of action is for injuries to real prop- erty, while the second is "upon con- tract." Thomas v. Utica.etc., R. Co., 97 N. Y. 245 Injury to Property and Person. A cause of action for injury to the prop- erty of two persons in partnership can- not be joined with one for injuries from the same wrong to the person of one partner. Taylor v. Manhattan R. Co., 53 Hun (N. Y.) 305. A claim for injuries to the person cannot be united with one for injuries to prop- erty. McCartyz>. Fremont, 23Cal. 196. Damage to Building and Trespass. A claim for damages done to a brick building by the construction of a rail- road track within three feet of its front wall, and -a claim for damages for trespass by defendant upon plaintiff's land, cannot be joined in the same count. Dougherty v. Wabash, etc., R. Co., 19 Mo. App. 419. Condemnation of Land and Damages for Trespass. An action against a railroad company for a trespass to land in building its road thereon, without license or condemnation of the land, cannot be joined with a proceeding by the company to condemn land under ch. 119 of 1872. Blesch v. Chicago, etc., R. Co., 44 Wis. 593. Separate Dams Erected. Where two persons each severally built dams across a river, one across the north channel, and the other across the south channel, which caused an over- flow, .held, that there was a separate cause of action against each de- fendant, and that the two causes of action could not be joined in the same complaint. Lull v. Fox, etc., Imp. Co., 19 Wis. in. See also Arimond v. Green Bay, etc., Canal Co., 31 Wis. 316. Injury to Real Property and Slander of Title. An action for slander of title cannot be united with one for an in- jury to real property. Dodger. Colby, 108 N. Y. 445. Riparian Owners Restraining Diversion of Water. In an action by riparian owners to restrain the diversion of water from their lands, an allegation that the defendant entered upon the land of one of the plaintiffs and dug up and removed rocks and soil there- from does not state a cause of action, so as to create an improper joinder, where such allegation is made merely to show the means employed in di- verting the water, and no damages are claimed on account of such entry. Grand Rapids Water Co. v. Bensley, 75 Wis. 399. Damages for Diverting Water and In- junction. If the several owners of a stream join as plaintiffs in an action for damages for diverting the waters of the stream, and for an injunction to restrain the defendants from the further diversion thereof, the owners having no joint or common interest, neither one having any interest in the land, water, or ditch of the other, the Joinder under the Codes. ACTIONS. To Recover Eeal Property. are brought to recover real property, with or without damage for the withholding thereof. 1 complaint is demurrable, both for a misjoinder of parties plaintiff and for a misjoinder of causes of action. Foreman z>. Boyle, 88 Cal. 290. Lowering Waters of Lake. An action to recover damages for the lowering of the waters of a lake may be joined with one for an injunction to prevent the continuance of the acts causing them. Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Co., 79 Wis. 297. Laying Railroad Track. An action to restrain the laying of a railroad track in a street in front of plaintiff's premises cannot be joined with one asking damages for a track already laid there and an injunction to pre- vent further use of the street by de- fendant till such damages are paid, under 2630 of the Code, which al- lows two causes to be joined "where each may be prosecuted by the same kind of proceedings." Bowman v. Chicago R. Co. (Iowa, 1892), 53 N. W. Rep. 327. Temporary and Permanent Damages. If a railroad company in building its roadbed extends a permanent approach thereto in front of plaintiff's lot, de- stroying egress and ingress therefrom to the street, and at the same time floods plaintiff's lot by means of an improper culvert under its embank- ment on the south of said lot, plaintiff can recover for both the temporary and the permanent damages in the same action. Wallace v. Kansas City R. Co., 47 Mo. App. 491. Damages for Trespass and Waste, and Injunction. A claim for damages against a county for trespass and waste cannot be joined with one for an injunction to restrain further acts of waste. McCann v. Sierra County, 7 Cal. 123. Quare Clausum Fregit and Negligence. Where there was a joinder of an action to recover for injuries to per- sonal property, and an action quare clausum fregit, and one for negligence, the court refused to arrest the judg- ment. Henshaw v. Noble, 7 Ohio St. 226. Trespass and Profits. To a count in trespass for entering upon the plain- tiff's land and taking and carrying away his wheat, cotton, etc., a count may be added by way of amendment, for taking and carrying away the pro- ceeds and profits of the same land for the same time. Oglesby v. Stodghill, 23 Ga. 590. Indiana. For Injury and Possession. Under the fourth clause of section 278 Rev. Sts. 1881, a paragraph of com- plaint to recover damages for conver- sion may be joined with a paragraph to recover possession of the same property. Baals v. Stewart, 109 Ind. 371. Missouri. Several causes of action for injury to person or property, whether real or personal, direct or consequential, and whether the dam- ages are given by statute or by com- mon law, single or double, may be included in the same petition. Clark v. Hannibal, etc., R. Co., 36 Mo. 202. In an action to recover damages to plaintiff's crops by the overflow of his lands caused by the diversion of the channel of a watercourse, each annual overflow is a separate cause of action, but all may be joined in the same action. Mooney v. Kennett, 19 Mo. 551, 61 Am. Dec. 576; Otis v. Me- chanics Bank, 35 Mo. 128 ; Offield v. Wabash, etc., R. Co., 22 Mo. App. 607. 1. Hubbell v. Lerch, 58 N. Y. 237 ; Vandevoort v. Gould, 36 N. Y. 639 ; Langsdale v. Woollen, 120 Ind. 16 ; Sullivan v. Davis, 4 Cal. 291 ; Brown v. Quartz Min. Co., 15 Cal. 152; Arm- strong v. Hinds, 8 Minn. 254 ; Merrill v. Dearing, 22 Minn. 376 ; Fletcher v. Brown, 35 Neb. 660 ; Harrall v. Gray, 12 Neb. 543; McKinney v. McKinney, 8 Ohio St. 429. Rent and Damages. Plaintiff may join in the same action a claim to re- cover rent of real estate under an im- plied contract and one for the recovery of damages for the wrongful occupa- tion of the same real estate. Foster v. Hinson, 76 Iowa 714. Trespass and Ejectment. Trespass and ejectment, and trespass quare clausum fregit in respect of the same premises, cannot be joined. Budd v. Bingham, 18 Barb. (N. Y.) 494. Recovery of Land and for Change of Road. A claim for the possession of real property, with damages for its de- tention, cannot be joined in the same complaint with a claim for consequen- tial damages arising from the change of a road, by which a tavern-keeper Joinder under the Codes. ACTIONS. Partition. 11. Partition. Some of the Codes allow partition to be joined with other matters. Thus an action to correct a deed may be joined with one for partition. 1 So an action to declare a result- ing trust in land, and for partition of the same, may be joined. 2 may have been injured in his business. Bowles v. Sacramento Turnpike, etc., Co., 5 Cal. 224. Ejectment and Chancery Relief. A complaint which joins an action of trespass quare clausum fregit. eject- ment, and prayer for relief in chancery is bad. Bigelow v. Gove, 7 Cal. 133. But see Weaver v. Conger, 10 Cal. 233, where a claim to recover damages for the diversion of water from a flume, and one for an injunction, were allowed to be joined. Cancellation of Deeds, Ejectment, and to Quiet Title. Causes of action for cancellation of deeds, ejectment, and to quiet title are not joinable. Tomp- kins v. Sprout, 55 Cal. 31. Conveyance of Land, and Rents. A pe- tition for the conveyance of land and possession thereof, and for the rents and profits, is not multifarious. Duvall v. Tinsley, 54 Mo. 93; Kelly v. Hurt, 61 Mo. 463. Separate Parcels. A claim for dam- ages for withholding one parcel of land is improperly united with a claim to recover the possession of another parcel, with damages for the with- holding thereof. Holmes v. Williams, 16 Minn. 164. Recovery of One Parcel and Trespass on Another Parcel. Claims for the recov- ery of real property and for trespass on other lands cannot be joined. Hulce v. Thompson, 9 How. Pr. (N. Y. Su- preme Ct.) 113; Furlongs. Cooney, 72 Cal. 322. And see Loveland v. Garner, 71 Cal. 541. Counterclaim. Causes of action which cannot be joined in the com- plaint cannot be joined in a counter- claim, and as a demand for waste is not incident to the recovery of the pos- session of the real estate, it was not properly joined in the counterclaim. Woodruff v. Garner, 27 Ind. 4. Forcible Entry and Detainer, and Dam- ages for Holding Over. Forcible entry and detainer cannot be joined with a claim for damages for holding over as a tenant, contrary to the terms of the lease. Polack v. Shafer, 46 Cal. 270. Forcible Entry and Detainer, and Waste. Damages for waste cannot be joined with forcible entry and detainer. War- burton v. Doble, 38 Cal. 622. Land in Different Counties. Where one cause of action relates to land in one county, and another cause of ac- tion to land in another county, there is a misjoinder. Hackett v. Carter, 38 Wis. 394. And see Heath v. Silver- thorn Lead Min., etc., Co., 39 Wis. 146. Forfeiture of Lease and for Rent Due. An action for forfeiture of lease and one for rent due cannot be joined. Owens v. Hickman, 2 Disney (Ohio), 471 ; Countee v. Armstrong, 10 Cin. L. Bull. (Ohio) 339. Real Action and Injunction. A real action is joinable with an injunction to restrain waste or trespass. Merced Min. Co. v. Fremont, 7 Cal. 317, 68 Am. Dec. 262 ; Hicks v. Davis, 4 Cal. 67; Natoma Water, etc., Co. v. Clarkin, 14 Cal. 544; Curtis v. Sutler, 15 Cal. 259- Proceedings to Acquire Right of Way. Under section 1244 of the Code of Civil Procedure, a proceeding by a railroad corporation to acquire a right of way across the right of way of an- other railroad company, and a pro- ceeding to acquire a right of way over lands which the defendant owns in fee, may be united. California South- ern R. Co. v. Southern Pac. R. Co., 67 Cal. 59. Cancellation and Possession. Under the Code a cause of action for the can- cellation of a deed to real property may be united with an action for pos- session of the same property when both causes of action affect all the parties in the same character and ca- pacity, and are directly connected with the subject-matter of litigation. Stock Growers' Bank v. Newton, 13 Colo. 245- Kentucky. It is optional for the plaintiff to join claims for the recovery of specific real property, and for the rents, profits, and damages for with- holding the same. in of the Civil Code is permissive, not mandatory. Burr -v. Woodrow, i Bush (Ky.) 602. 1. Dameron v. Jamison, 4 Mo. App. 299. 2. Buchannan v. Buchannan (S. Car. , 1893), 17 S. E. Rep. 218. And see Field v. Hurst, 9 S. Car. 277. Joinder under the Codes. ACTIONS. Foreclosure. Likewise an action to enforce partition is joinable with one to enforce a trust. 1 And partition may be joined with an action to quiet title. 2 Partition and claims for rents and profits may be joined. 3 An action for the recovery of real property may be joined with one seeking partition. 4 12. Foreclosure. Where a mortgage or instrument is foreclosed, the courts show a disposition to give full relief in the same action, and other matters may be joined therein. 5 1. Pixley v. Bent, 59 Cal. 522. 2. Schissel v. Dickson, 129 Ind. 139. 3. Perry v. Richardson, 27 Ohio St. no; Finch v. Baskerville, 85 N. Car. 205. 4. Gallon v. Tolly, 22 Kan. 678 ; Seibert v. Baxter, 36 Kan. 189; Scar- borough v. Smith, 18 Kan. 399; Scant- lin v. Allison, 32 Kan. 379; Durein v. Pontious, 34 Kan. 353; Black v. Drake, 28 Kan. 482; Hall v. Sanders, 25 Kan. 543. Partition and Distribution. An action for partition of land among the remain- dermen in fee, after the death of the life-tenant, and for an account and distribution of the estate of such life- tenant, is a misjoinder of causes of ac- tion. Shanks v. Mills, 25 S. Car. 358. See also Lowry v. Jackson, 27 S. Car. 318. Partition and Creditor's Bill. A cred- itor's bill and one for partition cannot be united. Dewey v. Ward, 12 How. Pr. (N. Y. Supreme Ct.) 419. Separate Conveyances by Tenant in Common Preclude one Action of Parti- tion. Where one tenant in common has made separate conveyances of the entire right, in various parcels of the land held in common, so that each pur- chaser's title and possession is sepa- rate and distinct, the other tenant in common cannot sustain a joint suit for partition against such purchasers, but must bring a separate suit against each. Premiss' Case, 7 Ohio 131. Partition and Correcting Distribution Decree. A count to correct a mistake by which one distributee had obtained more than his share of the decedent's estate, also one to have deeds of par- tition made according to the agree- ment which had been made by the heirs, is a proper joinder. Whitney v. Whitney, 5 Dana (Ky.) 329. 5. Mortgage on Several Tracts. A bill to obtain payment of a debt secured by mortgage is not multifarious be- cause it covers several tracts sold to various purchasers and makes them all parties. Muskingum Bank v. Car- penter, Wright (Ohio) 729. Tax Deeds. Under statutory provi- sions for the foreclosure of tax deeds, several distinct parcels of land, con- veyed under a tax sale by different deeds, when they are the property of one or of several joint owners, may be joined in one action to foreclose the tax title. Byington v. Woods, 13 Iowa 17. Land Contract. An action to recover the balance due on a land contract, and to subject the land to sale for the payment thereof, may be joined. Lins- ley v. Logan, 33 Ohio St. 396. And see Karr v. Neach, 5 Am. L. Bull. (Ohio) 648. Foreclosure and Debt. Foreclosure of mortgage may be united with a de- mand for the amount of the debt and for possession of property conveyed by the deed. Martin v. McNeely, 101 N. Car. 634. Deed Declared Mortgage and Foreclo- sure, and Cancellation of Other Deed. An action to have deed declared to be a mortgage, and to have the same fore- closed, may be joined with an action to cancel another deed to same land. Moon v. McKnight, 54 Wis. 551. Foreclosing Land Contract and Setting Aside Attachment. In an action to foreclose a land contract given by the plaintiffs to one of the defendants, the complaint alleged that the other de- fendant had by a false affidavit ob- tained an attachment of the land, and that the defendants were colluding together by means of such attachment to retain possession of the land with- out performing said land contract. The prayer was that the attachment be set aside and the contract fore- closed. Held, that there was no im- proper joinder of- causes of action. Ramash v. Scheuer, 81 Wis. 269. Foreclosure and Personal Judgment. The foreclosure of a mortgage and a personal judgment may be asked in the same action. Campbell v. Nichol- 203 Joinder under the Codes. ACTIONS. Torts. 13. Torts. All the Codes, with more or less detail, classify the torts that are joinable, as, for instance, injuries to person, to character, to personal property, and to real property, and this classification seems to have in a great measure reduced the number of cases which otherwise might have arisen. But there are cases which hardly seem to come under any of the above classifications, in which it has been held that matters were either joinable or not joinable. 1 son (Tex. App., 1892), 18 S. W. Rep. 135. See also McCormick v. Blum, 4 Tex. Civ. App. 9. Note and Mortgage. An action on a note may be joined with one to fore- close a mortgage securing it. Turner v. Frost, 3 West. L. Month. (Ohio) 213; Burdell v. Reeder, 2 Cin. Super. C. (Ohio) 94; King v. Safford, 19 Ohio St. 587. Avoiding Contract of Purchase and Foreclosure. An action to avoid a con- tract of purchase with foreclosure of mortgage for purchase money is a misjoinder. Camden v. Vail, 34 Cal. 382. Foreclosure and Setting Aside Trust Deed. An action of foreclosure can- not be joined with an action to set aside a trust deed under which the mortgagor claims. Helck v. Rein- heimer, 23 N. Y. Wkly. Dig. 473. 1. Tort and Injunction. A cause of action in tort and one for an injunc- tion to protect the subject-matter in litigation are joinable. Gates v. Kieff, 7 Cal. 124 ; Marius v. Bicknell, 10 Cal. 217 ; Weaver v. Conger, 10 Cal. 233 ; Jungerman v. Bovee, 19 Cal. 354 ; More v. Massini, 32 Cal. 590 ; Yolo County v. Sacramento, 36 Cal. 193. Mining Claim and Damages. In an action for injuries to a mining claim, a claim for damages by reason of the breaking-away of the defendant's dam, and the consequent washing away of the pay-dirt of the plaintiff, may prop- erly be joined with a claim for dam- ages for preventing plaintiff from working his claim. Fraler v. Sears Union Water Co., 12 Cal. 555, 73 Am. Dec. 562. Value of Property Destroyed. A cause of action for the value of property destroyed may be united with claims for damages. Tendesen v. Marshall, 3 Cal. 440. Trover for Horse and Case for Fraud Inducing its Sale. A count in trover for the conversion of a horse and buggy may be joined with a count in case for fraud and deceit, whereby defendant induced plaintiff to sell him the horse and buggy for a worthless note of a third person. Henry v. Allen, 93 Ala. 197. And see Wilkinson v. Moseley, 30 Ala. 562 ; Dixon v. Barclay, 22 Ala. 370. Action for Libel not Amendable to Trespass. An action for libel is not amendable by adding a count for tres- pass to the person. Ransone v. Chris- tian, 56 Ga. 351. Joint Tort. An averment by the plaintiff of a joint tort by the defend- ants does not show a misjoinder of causes of action. Barnes v. Ennenga, 53 Iowa 497. Slander Spoken of Several. A joint action for slander cannot be main- tained. If the same slanderous words be at the same time spoken of several parties, each must seek a separate remedy. Hinkle v. Davenport, 38 Iowa 355. Negligence of Fellow-Servant and Vice- Principal. An action for the negli- gence of a fellow-servant may be united with one for the negligence of a vice-principal, provided they are not blended in the same count. McDer- mott v. Hannibal, etc., R. Co., 87 Mo. 302. Several Trespasses. In an action in tort several distinct trespasses may be joined in the same action. Wilson v. Johnson, I Greene (Iowa) 147. Separate Tort Feasors. Two causes of action against separate tort feasors may be joined. Trowbridge v. Fore- paugh, 14 Minn. 133. Common-Law and Statutory Negli- gence. A common-law action for neg- ligence cannot be joined in the same count with one- for statutory negli- gence. Kendrick v. Chicago, etc., R. Co., 81 Mo. 521. Stolen Stock and its Deposit. An action against parties who had loaned money on stock stolen from the plaintiff can- not be joined with an action against a bank with whom the thief had depos- 204 Joinder under the Codes. ACTIONS. Mechanic's Lien Replevin. 14. Mechanic's Lien. There have been some cases in construc- tion of the Codes in reference to the joinder of actions for fore- closing mechanic's liens and on other claims. They generally allow a joinder of the foreclosure with one for personal judg- ment. 1 15. Replevin. Replevin sounds in tort, and cannot be joined with an action upon contract.'- 2 ited the borrowed money. Sanford v. Fourth Nat. Bank, 60 Hun (N. Y.) 484. Erection of Nuisance by One, Continu- ance of it by Another. An action for the erection of a nuisance by one de- fendant and an action for its continu- ance by another cannot be joined. Hess v. Buffalo R. Co., 29 Barb. (N. Y.) 391- Slander by Husband and Wife. Slan- der by both husband and wife cannot be sued for in the same action. Ma- lone v. Stilwell, 15 Abb. Pr. (N. Y. C. PI.) 421. Two Torts, One Assigned. An action by an assignee of the claim, in his own name, for damages to premises by overflow may be joined with one for damages to the same premises accru- ing subsequently to his ownership. Hall v. Cincinnati, etc., R. Co., I Dis- ney (Ohio) 58. Malfeasance in Office and Devastavit. A cause of action against a clerk of the superior court for damages result- ing from malfeasance in accepting an insufficient bond from an administra- tor cannot be joined with a cause of action against such administer and his sureties for a devastavit. Mitchell v. Mitchell, 96 N. Car. 14. 1. Clippenger v. Ross, 3 West. L. Month. (Ohio) 648. Material Furnished to Owner and Con- tractor. A mechanic, in an action to enforce a lien for work and material on a building, may unite a cause of ac- tion for work and material furnished to a contractor with a cause of action for work and material furnished at the request of the owner. Quale z/. Moon, 48 Cal. 478. Failure to Establish Lien. A plaintiff proceeding in rent for the enforcement of a mechanic's lien may also count upon the personal liability of the de- fendant, and recover in personam, though he may fail to establish the al- leged lien. Bingman v. McGuire, 32 Ark. 733. See also Arkansas R. Co. v. McKay, 30 Ark. 682. Owner and Agent. A cause of action to foreclose a mechanic's lien against the owner cannot be joined with one on contract against a person who stands in relation to the owner as agent and not as contractor. Gothard v. Lavelle, 4 N. Y. Month. L. Bull. 30. Lien and Money Due after Filing of Lien. In an action to foreclose a mechan- ic's lien it is improper to join a claim for labor and material for which pay- ment became due after the filing of the lien. Schillinger Fire Proof Cement, etc., Co. v. Arnott (Supreme Ct.), 14 N. Y. Supp. 326. Lien Against One and Personal Demand Against Another. A complaint sought a judgment for damages against A., B., and C. , the enforcement of a mechanic's lien for the amount of such damages against property of which the legal title was in C., and a judgment that C. convey said property to A. . Quare, whether there was not a misjoinder of causes of action. Charboneau v. Henni, 24 Wis. 250. Herder's Liens. In an action of claim and delivery, defendants having sepa- rate and distinct liens on the cattle sought to be recovered, arising out of separate contracts, cannot join setting up such liens to defeat the plaintiff's right to the possession. Underwood v. Birdsell, 6 Mont. 142. New York. The provision of the Code authorizing the joinder of causes of action, legal and equitable, by im- plication prohibits the union of a cause of action for the enforcement of a lien with one for the collection of a debt, except in the case of a mortgage se- cured by bond or other obligation of the mortgagor or a third person. Bur- roughs v. Tostevan, 75 N. Y. 567. 2. Furniss v. Brown, 8 How. Pr. (N. Y. Supreme Ct.) 59; Corbin v. Bouve, I Cinn. Super. Ct. (Ohio) 259. But an action upon an undertaking in the nature of replevin bail is an action for a money demand on contract. Roberts v. Nodevift, 8 Ind. 339. 205 Joinder under the Codes. ACTIONS. Pull Eelief. 16. Forcible Entry and Detainer. Two actions in forcible entry and detainer cannot be joined. 1 17. Certiorari. Certiorari proceedings cannot be joined. 2 18. Mandamus. Mandamus may be joined to another proceed- ing as an auxiliary remedy. 3 19. Full Relief a. GENERALLY. The equitable principle of complete relief is often referred to in the Code States to justify the joinder of various matters. This is in accordance with the equity principle that when a court of chancery has acquired juris- diction it will proceed and give full relief. 4 In the note will be 1. McGuire v. Cook, 13 Ark. 448. 2. Galveston, etc., R. Co. v. Ware, 2 Tex. App. Cas. 357. 3. Action Against County. In an ac- tion against a county a cause of action for a debt may be joined with a writ of mandamus to enforce it. Custer County v. Yellowstone County, 6 Mont. 46. Separate Proceedings. Where aboard of county commissioners refuse to con- sider and canvass the petition of the resident taxpayers of a township for elections to submit propositions to subscribe to capital stock of a railroad to the voters, each township must bring its own writ of mandamus against the board, and two or more townships cannot be joined in the same proceedings. State v. Reno County, 38 Kan. 317. 4. Minnesota. Ham v. Johnson, 51 Minn. 105; Nichols v. Randall, 5 Minn. 304; Kraemer v. Duestermann, 37 Minn. 469; Fish v. Berkey, 10 Minn. 199; Palmer v. Tyler, 15 Minn. 106. Iowa. Sweetzer v. Harwick, 67 Iowa 488; Reed v. Howe, 28 Iowa 250; Sands v. Wood, i Iowa 263; Kramer v. Reb- man, 9 Iowa 114; Breckinridge v. Brown, 9 Iowa 396; Stapleton v. King, 40 Iowa 278; Cogswell v. Murphy, 46 Iowa 44; Des Moines v. Stephenson, 19 Iowa 507; Dorothy v. Hicks, 63 Iowa 240. Indiana. Smith v. Kyler, 74 Ind. 575; Lindley v. Cross, 31 Ind. 106, 99 Am. Dec. 610; Hunter v. McCoy, 14 Ind. 528; Miller v. Kolb, 47 Ind. 220; Rigsbee v. Trees, 21 Ind. 227; Monroe v. Skelton, 36 Ind. 302; Jaseph v. Peoples' Sav. Bank (Ind. 1889), 22 N. E. Rep. 980; Conger v. Parker, 29 Ind. 380; Love v. Mikals, II Ind. 227; Fritz v. Fritz, 23 Ind. 388. Connecticut. Butler v. Barnes, 60 Conn. 170. Colorado. First Nat. Bank v. Hun- nel, 14 Colo. 260. California. Burt v. W T ilson, 28 Cal. 632, 87 Am. Dec. 142; Wilson v. Castro, 31 Cal. 420; Pfister v. Dascey, 65 Cal. 403; Weaver v. Conger, 10 Cal. 233; Carpenter v. Oakland, 30 Cal. 439; Morenhout v. Hignera, 32 Cal. 289; More v. Massini, 32 Cal. 590; Garr v. Redman, 6 Cal. 574; Stone v. Fouse, 3 Cal. 292; Grandona v. Lovdal, 70 Cal. 161; Reynolds v. Lincoln, 71 Cal. 183; Hutchinson v. Ainsworth, 63 Cal. 286; Farwell v. Jackson, 28 Cal. 105; Eastman v. Turman, 24 Cal. 379. Missouri. Linden v. Rowe, 51 Mo. 571; Ware v. Johnson, 55 Mo. 500; Holloway v. Holloway, 99 Mo. 305. Nebraska. Stewart v. Carter, 4 Neb. 564; Wilcox v. Saunders, n Neb. 569. Ohio. Warner v. Callender, 20 Ohio St. 190; Roberts v. Glenn, I Clev. Rep. (Ohio) 46; Stone v. Becker, 2 Clev. Rep. (Ohio) 346; Columbus, etc., Co. v. Steinfeld, 42 Ohio St. 449; Globe Ins. Co. v. Boyle, 21 Ohio St. 120; Hathway v. Springfield, etc., R. Co., 2 West. L. Month. (Ohio) 481. Wisconsin. Stroebe v. Fehl, 22 Wis. 337; Horn v. Ludington, 32 Wis. 73. Texas. Finch v. State, 71 Tex. 52. New York. Stanton v. Missouri Pac. R. Co. (Supreme Ct.), 2 N. Y. Supp. 298; Marx v. Tailer, 12 Civ. Pro. Rep. (N. Y. Supreme Ct.) 226; Woodard v. Holland Med. Co. (Super. Ct.), 39 N. Y. St. Rep. 44; Hinds v. Tweddle, 7 How. Pr. (N. Y. Supreme Ct.) 278; Jeroliman v. Cohen, i Duer (N. Y.)62g; De Witt v. McDonald, 58 How. Pr. (N. Y. Supreme Ct.) 411; Freer v. Den- ton, 61 N. Y. 492; Smith v. Rathburn, 22 Hun (N. Y.) 150; Krawer v. Rey- nolds, 99 N. Y. 245; Morrissey v. Leddy, n Civ. Pro. Rep. (N. Y. Su- preme Ct.) 438; Genesee County Bank v. Bank of Batavia, 43 Hun (N. Y.) 295; Farmers', etc., Nat. Bank v. Rogers, 15 Civ. Pro. Rep. (N. Y. Super. Ct.) 250; Bateman v. Forty-second St., etc., R. Co. (C. PI.), 5 N. Y. Supp. 13; Parmer- 206 Joinder under the Codes. ACTIONS. Full Relief. found a collection of cases where the plaintiff was either allowed full relief, or where it was held that the matters were not properly joined. 1 ter v. Baker, 24 Abb. N. Cas. (N. Y. Supreme Ct.), 104; Pilwisky v. Cat- taberry (C. PI.), 30 N. Y. St. Rep. 857; Palen v. Lent, 5 Bosw. (N. Y.) 713; Warth v. Radde, 28 How. Pr. (N. Y. Supreme Ct.) 230; Smith v. Goertner, 40 How. Pr. (N. Y. Supreme Ct.) 185; Rodgers v. Rodgers, II Barb. (N. Y.) 595; Barnes v. Smith, I Robt. (N. Y.) 699; Coster v. New York, etc., R. Co., 6 Duer (N. Y.) 143; Schnitzer v. Tyrell, 23 N. Y. Wkly. Dig. 476; Barnard v. Brown, 17 N. Y. Supp. 313, 63 Hun (N. Y.) 625; Selye v. Zimmer (Supreme Ct.), 15 N. Y. Supp. 881; Good v, Daland, 121 N. Y. i; Lehnen v. Purvis (Supreme Ct.) 9 N. Y. 910; U. S. Life Ins. Co. v. Jordan, 21 Abb. N. Cas. (N. Y. Supreme Ct.) 330; Gray v. Rothschild, 112 N. Y. 66S; Krower v. Reynolds, 99 N. Y. 245; Tuers v. Tuers, 100 N. Y. 196; Cahoon v. Bank of Utica, 7 N. Y. 486. Kentucky. Randall v. Shropshire, 4 Mete. (Ky.) 327; McKee v. Pope, 18 B. Mon. (Ky.) 436; Hobbs v. Middle- ton, I J. J. Marsh. (Ky.) 178; Sale v. Crutchfield. 8 Bush (Ky.) 636; Harris v. Campbell, 4 Dana (Ky.) 587; Wilde v. Haycraft, 2 Duv. (Ky.) 311; Talbot u. Brockman, i A. K. Marsh. (Ky.) 555; Jackson v. Bourbon, 2 Bibb (Ky.) 292; Walker v. Mitchell, 18 B. Mon. (Ky.) 541; Shean v. Cunningham, 6 Bush (Ky.) 123; Sheppard v. Stephens (Ky., 1887), 2 S. W. Rep. 548. Kansas. Bradley v. Parkhurst, 20 Kan. 462; Nooner v. Short, 20 Kan. 624; Bainter v. Fults, 15 Kan. 323; Harsh v. Morgan, I Kan. 293. 1. To Enjoin City. An action may be maintained to enjoin a city from making a street railroad grant to either of two applicants. Mathers v. Cincinnati, 3 Cin. L. Bull. (Ohio) 551. Action by Assignee. An action by an assignee to recover the possession of personal property cannot be united in an action to settle and distribute the estate of his assignor. Atchison v. Jones (Ky., 1886), i S. W. Rep. 406. Creditor's Bill and Personal Judg- ment. An action to recover a money judgment and an action in the nature of a creditor's bill to obtain satisfac- tion of the judgment cannot be joined. Marion Deposit Bank v. McWilliams, I West. L. Month. (Ohio) 571. Multifariousness. A judgment creditor brought his action against the several parties, their sureties and representatives, who had administered upon the estate of his judgment debtor, deceased, for account, settlement, etc., alleging also that the lands of the de- ceased were bound by his judgment, and that " plaintiff is informed and be- lieves that one S. claims to be the owner in fee of the land herein de- scribed, but the plaintiff denies the validity of said title, if any he have, and alleges the same is illegal and void." Held, that complaint was multi- farious for misjoinder of the cause of action against S. Suber v. Allen, 13 S. Car. 317. Against Administrator. A cause of action against an administrator and others growing out of a fraudulent sale of land by the administrator, and a cause of action against the adminis- trator alone for waste committed prior to the sale, cannot be joined. Hoff- man v. Wheelock, 62 Wis. 434. Against Owner and Tenant. An action against the owner of a distillery for the nuisance occasioned thereby can- not be joined with a cause of action against other persons who severally held and ran the distillery as tenants at different periods, under leases. Greene v. Nunnemacher, 36 Wis. 50. Bail Bond and Trust. A suit on a bail recognizance cannot be joined with a bill to enforce a trust deed, given as indemnity to the sureties. People v. Skidmore, 17 Cal. 260. To Impress a Lien, and Contract. A cause of action against the representa- tives of a decedent to impress a lien upon the decedent's real estate can- not be joined with a cause of action under the statute, against the heirs and their grantees upon a contract of the decedent. Hayward v. McDonald, i How. Pr. N. S. (N. Y. Supreme Ct.) 229. Illegal Tax. In an action against a city to recover a tax erroneonsly as- sessed on a lot, it is not permissible to join a cause of action against the owner of the lot, who is made a party defendant, to recover his proper pro- portion of the amount paid by the plaintiff on said lot. Langevin v. St. Paul, 49 Minn. 189. 207 Joinder under the Codes. ACTIONS. Full" Relief. b. LEGAL AND EQUITABLE RELIEF ASKED. The complaint may embrace both legal and equitable causes of action, and legal and equitable relief may be asked in the same complaint. 1 For Rent and Enforcement of Lien on Crops. A landlord cannot maintain a joint action for rent against his ten- ant, and for conversion against an- other person, who, with knowledge of his lien rights, has bought the crop and disposed of it. Phillips v. Flynn, 71 Mo. 424. Prior Vendee. The making a prior vendee of the land a party to an action to foreclose a mortgage, for the pur- pose of avoiding his title as fraudulent, is a misjoinder of causes of action. Adams v. Edgerton, 48 Ark. 419. In Personam and In Rem. A cause of action in personam at law may be united with a cause of action in rent in equity, if both arise out of the same transaction, as for the foreclosure of a mortgage and against the mortgagor on the bond. Thorne v. Newly, 59 How. Pr. (N. Y. Supreme Ct.) 120. Breaches of Covenants in Deeds of Different Lands. Breaches of the covenants in two deeds of different lands from defendant to plaintiff may be joined. Nichol v. Alexander, 28 Wis. 118. See also Welsh v. Chicago, etc., R. Co., 34 Wis. 494. Money Demand and to Set Aside Fraudu- lent Conveyance. In an action by a creditor a money demand arising upon a contract cannot be joined with a prayer to set aside a conveyance of real estate on the ground of fraud, and subject it to plaintiff's claim against the grantor. Stevens v. Chance, 47 Iowa 602. On Account, to Have One Adjudged In- sane, and to Set Aside Conveyance. An action at law upon an account, a pro- ceeding to have one adjudged insane, and an action in equity to set aside a conveyance of real estate as void as against creditors, cannot be joined in the same petition, under ^ 2630 of the Code, permitting the joinder of "causes of action, of whatever kind, where each may be prosecuted by the same kind of proceedings." Faivre v. Gillman, 84 Iowa 573. Rescinding Sale on Ground of Fraud, and on Covenant of Seisin. An action to rescind a sale of land on the ground of fraud cannot be joined with an ac- tion on the covenants of seisin and right to convey contained in the deed, because the former is a disaffirmance,, while the latter is an affirmance, of the contract. McLennan v. Prentice, 85 Wis. 440. Correction of Deed and Quieting Title. An action to correct a deed and to quiet title may be joined. Hender- son v. Dickey, 50 Mo. 161. Joinder not Required. There is no rule that requires a party to join in one suit several and distinct causes of action, although he may under certain circumstances be required to consoli- date them. Beck v. Deveraux, 9 Neb. 109. Facts Constituting each Cause of Action. A petition is bad which classifies and groups together the principal facts constituting 670 separate and distinct causes of action, and alleges such facts in general terms (670 sepa- rate and distinct facts being stated in one general allegation) in one general heading to said petition, and does not state the facts constituting each cause of action in a separate count, but simply refers in each count to the facts as stated in said general head- ing. Such a petition does not nor does any count thereof state facts suf- ficient, well pleaded, to constitute a cause of action. Stewart v, Balder- ston, 10 Kan. 131. 1. Allen -v. Taylor, 96 N. Car. 37; Phillips v. Gorham, 17 N. Y. 270; New York Ice Co. v. North Western Ins. Co., 23 N. Y. 357 ; Lattin v. McCarty, 41 N. Y. 107; Sheehan v. Hamilton, 42 N. Y. 304 ; Davis v. Morris, 36 N. Y. 569. Attacking Deed on Both Legal and Equitable Grounds. In an action to re- cover the possession of land the plain- tiffs may attack a deed under which the defendant claims title, both upon legal grounds and upon such as before the Code were of purely equitable cogni- zance. Phillips v. Gorham, 17 N. Y. 270. See also New York Ice Co. v. North Western Ins. Co., 23 N. Y. 357; Lattin v. McCarty, 41 N. Y. 107; Cum- mings v. Morris, 25 N. Y. 625; Stern- berger v. McGowern, 56 N. Y. 12; Beck v. Allison, 56 N. Y. 366, 15 Am. Rep. 430. Restraining Use of Trade-mark and Profits. An action to restrain the use 208 Joinder under the Codes. ACTIONS. Must Affect All Parties. 20. Causes of Action Must Exist at Time of Commencement of Suit. The Codes only have reference to joinder of causes of action existing at the commencement of the suit. A cause of action arising subsequently cannot be joined. 1 21. Must Affect All Parties a. GENERALLY. All the Codes pro- vide that the causes of action joined must affect all the parties alike. 2 of a trade-mark may be joined with one for an account as to profits and dam- ages. Leidersdorf v. Flint, 50 Wis. 401. See also Leidersdorf v. Second Ward Bank, 50 Wis. 406. 1. Taylor v. Moran, 4 Mete. (Ky.) 127. 2. Separate and Joint Torts. It is not permissible to join a cause of action for a separate tort with one for a joint tort. White v. Preston (Tex. App. 1891), 15 S. W. Rep. 712. For Conspiracy and the Usufruct Held by One. A cause of action for a fraud- ulent conspiracy cannot be joined with one to obtain a cancellation of a certifi- cate of deposit owned and held by one of the defendants, even though such certificate was obtained as the fruits of the conspiracy. Haskell County Bank v. Santa Fe Bank, 51 Kan. 39. Maker and Guarantor. The plaintiff may join as defendants the maker and guarantor of a note. Hendrix v. Ful- ler, 7 Kan. 331. Neither Defendant Interested in Cause Against Other. A cause of action in favor of the plaintiff and against one defendant cannot be united with an- other cause of action in favor of the the same plaintiff against another de- fendant, where neither defendant is interested in the cause of action al- leged against the other. Atchison, etc., R. Co. v. Sumner County, 51 Kan. 617. Against Corporation and Bond of Offi- cers. An action against a mutual life- insurance association and a person holding an insurance certificate in such association, to enforce an at- torney's lien for services for the holder of such certificate, cannot be joined with an action on an official bond given by the officers of the associationjunder chapter 131 of the Laws of 1885. Hentig v. Southwestern Mut. Ben. Assoc., 45 Kan. 462. Cause of Action Against One and Cause of Action Against Both Defendants. A cause of action against one defendant and a cause of action against both de- fendants cannot be joined. Addicken v. Schrubbe, 45 Iowa 315. Eequired to Elect. Where the peti- tion sets forth distinct causes of action against as many different defendants, no one being interested in the actions against the others, on defendants' motion the plaintiff should be required to elect which he will prosecute. St. Joseph's Orphan Soc. v. Wolpert, 80 Ky. 86. Contest of Elections of Judge and School Commissioner. The contest of an elec- tion for county judge and school com- missioner is distinct and separate, between different parties, forming separate and distinct causes of action, and cannot be united in one notice, and made a joint action upon which one trial and judgment can be ren- dered. Vance v. Gaylor, 25 Ark. 32. Against Obligor and Guarantor. A joint action cannot be maintained against the obligor and a person who signs a guaranty on the back of the obligation ; the undertakings are dis- tinct. Preston v. Davis, 8 Ark. 167. Joint and Separate Promises Distin- guished. In an action against two or more persons, founded on a joint promise, a recovery cannot be had on proof of a separate and distinct promise by each. Jackson v. Bush, 82 Ala. 396. Due in Different Rights. Distinct de- mands due is different rights cannot be joined. Kennedy v. Stallworth, 18 Ala. 263. For Transfer of Shares. The plaintiff sued to obtain a transfer to him of certain shares of the stock of a cor- poration which one of the defendants had acquired from him through fraud. In the same action he sought to re- cover other shares of the stock, which had been sold to another defendant under an assessment fraudulently levied by the corporation. Held, that there was a misjoinder of causes of action. Johnson v. Kirby, 65 Cal. 482. Negligence in Delivery of Telegraph Message. Telegraph messages were i Encyc. PI. & Pr 14. 209 Joinder under the Codes. ACTIOXS. Must Affect All Parties. b. HUSBAND AND WIFE. As to the joinder of husband and wife in an action, that topic belongs to the subject of " parties," which is not treated of herein ; but a few cases will be found col- lected in the note, where the joinder of causes of action, with reference to husband and wife, was held either proper or improper. 1 c REPRESENTATIVE CAPACITY. Likewise, the subject of the bringing of suits by the personal representatives of a decedent is more properly classified under the subject of "parties"; but sometimes, where personal representatives are parties, a case is decided with reference to the joinder of the causes of action rather than to the joinder of the parties. 8 sent by the son to the father, but ow- ing to negligence in the delivery the father was delayed in reaching Dallas before the burial of another son of -whose illness and death he was not advised otherwise. The father and son were joined as plaintiffs against the telegraph company for damages. Held, a misjpinderof causes of action. Anderson v. Western Union Tel. Co., 84 Tex. 17. Construction of Public Improvements. In an action against the city of Hen- derson for an injury to private prop- erty resulting from the carrying out of the laws and ordinances of the city in relation to the construction of public improvements, an amended petition was offered, setting up a cause of ac- tion against the municipal officers of the city, in their individual capacity, for the same injury occasioned from their gross negligence and abuse of power, to the filing of which amend- ment objection was made, field, that as each of the causes of action did not affect all the parties to the action, the amendment could not be filed. Han- cock v. Johnson, i Mete. (Ky.) 242. Indiana. Under the Code creditors may unite in a suit to enjoin a debtor from fraudulently disposing of his property, although their claims are several and not in judgment. Field v. Holzman, 93 Ind. 205. 1. Action to Avoid Usurious Securities. In an action by a husband and wife to avoid usurious securities given by them upon a loan made to the wife, it is improper to join a cause of action by the wife alone to recover back money paid by her upon the usurious con- tract. Anderson v. Scandia Bank, 53 Minn. 191. Personal Injuries to Wife. An action for personal injuries to the wife must be brought in the name of the hus- band and wife; but an action for con- sequential injury to the husband, such as the loss of his wife's services, must be brought in the name of the hus- band alone; and a complaint by the husband and wife, in which such causes of action are joined, is demur- rable. Tell v. Gibson, 66 Cal. 247; Shel- don v. Steamship Uncle Sam, 18 Cal. 534, 79 Am. Dec. 193. Foreclosure. A suit on note of hus- band may be joined with foreclosure against husband and wife. Rollins v. Forbes, 10 Cal. 299. A Cause of Action against Husband. A cause of action against the husband only cannot be joined with an action prosecuted against the husband and wife jointly, for the purpose of enforc- ing a liability against her separate estate for articles of comfort and sup- port of the family. May v. Smith, 48 Ala. 483. To Set Aside Conveyance. A claim to set aside a conveyance of real estate from husband to wife for fraud against creditors may be joined with a claim against the husband arising out of contract. Frank v. Kessler, 30 Ind. 8. Wife Individually and as an Adminis- tratrix. Frink v. Taylor, 4 Greene (Iowa) 196. 2. Against Administrator Personally and Against Estate. An action against administrator personally cannot be joined with a claim against the estate. Mesmert'. Jenkins, 61 Cal, 152; Fleisch- man v. Shoemaker, 2 Ohio Cir. Ct. 152. See also Mertens v. Lowenberg, 69 Mo. 208. Administrator of Two Estates. Dana- her v. Brooklyn, 4 Civ. Pro. Rep. (N. Y. Supreme Ct.) 286. Against Different Estates. Viall v. Mott, 37 Barb. (N. Y.) 208. 210 ADDITIONAL ALLOWANCES OF COSTS. UNDER THE NEW YORK CODE OF CIVIL PROCEDURE.* By WM. SETON GORDON. I. GENERAL PRINCIPLES, 211. II. PROVISION OF THE CODE, 212. III. THE APPLICATION, 216. 1. When Made, 216. 2. To What Court Made, 217. 3. Costs of the Motion, 218. 4. Appeal from the Order, 218. IV. WHERE ALLOWANCE MAY BE GRANTED OR REFUSED, 220. 1. In General, 220. 2. Subject-matter must Possess Pecuniary Value, 221. 3. Where Court may Exercise Discretion, 222. 4. Special Proceedings, 225. 5. Where Defendant is Entitled, 226. 6. What are Difficult and Entraordinary Cases, 226. 7. On Discontinuance, 228. 8. Only One Allowance, 229. V. How ALLOWANCE COMPUTED, 230. 1. Basis of Allowance, 230. 2. Subject-matter of Acfion, 233. I. GENERAL PRINCIPLES. Costs are the creation of statute. By the common law they were not awardable. The jurisdiction of the English Court of Chancery over costs originated in the stat- 1. It seems that the State of New York is the only jurisdiction in which the practice of making additional al- lowances of costs prevails, with the exception of Florida. Section 254 of the Code of that state authorizes a further allowance of costs in " difficult arid extraordinary" cases. There ap- pers to be but one decision construing this section. In Hart v. Bostwick, 14 Fla. 162, it was held that to authorize a further allowance under this provision there must be a case beset by more than the ordinary difficulties and requir- ing more than ordinary expenditures. Before making the order the court should determine that the case is "difficult and extraordinary," and this being determined, it is within the discretion of the court to make the fur- ther allowance. The amount allowed should not exceed a sum necessary to indemnify the prevailing party for his expenses, and cannot exceed five per cent upon the amount involved. An order making a further allowance may be reviewed upon appeal for the purpose of ascertaining whether the case is one in which such allowance may lawfully be made, and whether the sum allowed is within that author- ized by law; but the supreme court will not interfere with the exercise of the court's discretion unless the allowance exceeds the amount au- thorized. 211 General Principles. ADDITIONAL ALLO WANCES. Provisions of Code. ute 17 Rich. II. chap. 6, and except by virtue of this statute no power to award costs existed in the chancery. Up to the adop- tion of the Code of Procedure, 1 a discretionary power to award or withhold costs remained in the supreme and superior city courts of the state of New York in regard to all actions theretofore re- garded as equitable, limited as to amount by the fee bill then in force. The discretionary power was not disturbed by the Code of Procedure, although the limitation of amount was regulated by the new provisions. 2 II. PROVISIONS OF THE CODE. Under the Code of Civil Pro- cedure of the State of New York, provision is made for addi- tional allowances of costs beyond the amounts fixed and taxable Pr. (N. Y. Supreme Ct.), n; New York F. & M. Ins. Co. v. Burrell, 9 How. Pr. (N. Y. Supreme Ct.) 398; Rens- selaer v. Davis, 55 N. Y. 145; Mc- Quade v. New York, etc., R. Co., 5 Duer (N. Y) 613. Construction. The practice prevail- ing for many years in the First Depart- ment has been to construe the pro- visions as to extra allowances liber- ally; and a fair allowance in an im- portant and substantial litigation has been treated as almost a matter of course. Morrison v. Agate, 20 Hun (N. Y.) 24. The rule in the Second District declares that an allowance will be made whenever there has been a trial, and the parties have appeared and litigated the matters in contro- versy. In Surrogates' Courts. General power to award costs was conferred upon surrogates' courts by 2 Rev. Stat. 223, sec. 10. Subsequently, by sec. 9, chap- ter 359, Laws of 1870, the surrogate of New York county was empowered to make allowances in cases before him in the manner laid down by sections 308 and 309 of the former Code of Procedure. This statute was repealed in 1880. The general provisions of the present Code in respect to the award of costs and allowances have no application to surrogates' courts. In these particulars the special sec- tions of the Code of Civil Procedure relating to these tribunals contain all that affect them. Code Civ. Pr. sec. 2559-2563. The cases of Noyes v. Children's Aid Soc., 70 N. Y. 481; Dupuy v. Wurtz, 53 How Pr. (N. Y.), 48, i Hun (N. Y.) 119; Sequine v. Se- quine, 3 Abb. Pr. N. S. (N. Y. Su- preme Ct.) 442, were decided under the former Code of Procedure, re- pealed by chapter 245, Laws of 1880. 1. Historical Summary. The Code of Procedure effected a complete change in the method of allowing and com- puting costs. It abrogated all former rules and provisions of law upon the subject, and provided for certain sums specified and fixed. Under the Code as originally stated in 1848, provision was made (sections 263 and 264) for extra allowances to be granted in the discretion of the court. By an amendment (Laws of 1857, chap. 723, sec. 14) passed nine years afterwards, a plaintiff was permitted, upon the recovery of final judgments by him, to tax an additional allow- ance in certain cases as of right. By a further amendment (Laws of 1862, chapter 428) the recovery of final judgment was declared no longer nec- essary, and the allowance could be taxed where the action was settled before judgment. These successive amendments brought the require- ments of the statute substantially to what they are at present. Upon the adoption of the Code of Civil Proced- ure in 1880 (Laws of 1880, chap. 245), the former provisions were repealed. See Laws of 1858, chap. 306 ; Laws of 1859, chap. 428 ; Laws of 1862, chap. 460, sec. 19; Laws of 1865, chap. 615, sec. 8; Laws of 1870, chap. 741, sec. 12. 2. Intendment of the Statute. The purpose of these provisions of the stat- ute is to secure indemnity to the suc- cessful party for the expenses which, in the cases to which it applies, he may incur beyond such expenses as are usually necessary. Burk v. Candee, 63 Barb. (N. Y.) 552; People v. New York Cent., etc., R. Co., 29 N. Y. 426. The indemnity is for the expenses of the action as a whole, not for the ex- pense of any particular stage of the action. Magnin v. Dinsmore, 47 How. 212 Provisions of ADDITIONAL ALLOWANCES. the Code. under other sections of the Code. These additional allowances are in some cases a matter of right to the litigant, and in others a matter of discretion with the court. 1 Allowances as a Matter of Eight. Section 3252 of the Code of Civil Procedure provides that where an action is brought to foreclose a mortgage upon real property ;* or for the partition of real property ; or to procure an adjudication upon a will or other instrument 3 in writing; or to compel the determination of a claim to real prop- erty; 4 or where, in any action, a warrant of attachment against property has been issued; 5 the plaintiff, 6 if a final judgment is rendered in his favor, 7 1. But no discretion is given the court to make any allowances other than those authorized by these sec- tions. Hotaling v. Marsh, 14 Abb. Pr. (N. Y. Supreme Ct.) 161. 2. Foreclosure of Mechanic's Lien. An action to foreclose a mechanic's lien is not such an action. Hagan v. American Baptist, etc., Soc. (C. PI.), 6 N. Y. St. Rep. 212 ; Randolph v. Foster, 4 Abb. Pr. (N. Y. C. PI.) 262 ; Wright v. Reusens (Supreme Ct.), 39 N. Y. St. Rep. 802 ; McCulloch v. Dob- son (Supreme Ct.), 39 N. Y. St. Rep. 908 ; People v. Adams, 128 N. Y. 129. 3. Adjudication upon Written Instru- ment. These words refer to a class of cases well known in the former court of chancery, such as suits by a trustee for the judicial construction of the in- strument creating the trust ; they do not apply to every action upon a writ- ten instrument. Gray v. Robjohn, i Bosw. (N. Y.) 618 ; Smith v. St. Philip's Church, 107 N. Y. 610. 4. Bridges v. Miller, 2 Duer (N. Y.) 683 ; Powers v. Barr, 24 Barb. (N. Y.) 142. The corresponding provisions of the former Code were held to refer to special proceedings authorized by 2 R. S. 312. Bridges v. Miller, 2 Duer (N. Y.) 683. Those provisions were repealed by laws of 1880, chap. 245, and sections 1638-1650 were substi- tuted. It would appear that these words refer to an action under the last- mentioned sections. 5. Attachment Cases. But inasmuch as the allowance is measured by the value of the property, an actual levy must have been made under the at- tachment. Fisher v. English, 4 N. Y. L. Bull. 37. This value may be shown by the sheriff's return to the writ, with his customary appraisal of value ; but unless this appears, affidavits of value should be furnished. Fetchman v. Davenport, 8 Civ. Pro. Rep. (N. Y. City Ct.) 220. No allowance will be made if the attachment has been va- cated during the pendency of the ac- tion. Iselin v. Graydon, 26 How. Pr. (N. Y. Super. Ct.) 95 ; Parsons v. Sprague, 19 N. Y. Wkly. Dig. 467. But see Woodward -v. Grier, 2 Edm. Sel. Cas. (N. Y.) 51. See also Jack- son v. Figaniere, 15 How. Pr. (N. Y. Supreme Ct.) 224. 6. The allowances by statute are to the plaintiff only ; the allowances by the court may be made to any party. 7. Eecovery of Judgment Necessary. There must be a recovery of judg- ment unless the action is settled. Bostwick v. Tioga R. Co., 17 How. Pr. (N. Y. Supreme Ct.) 456 ; Murray v. Robinson, 9 Hun (N. Y.) 137 ; Bryon v. Durrie, 6 Abb. N. Cas. (N. Y. Supreme Ct.) 135 ; Brace v. Beattie, 7 Abb. Pr. (N. Y. Supreme Ct.) 445. But see Darling v. Brewster, 55 N. Y. 670. An interlocutory judgment on demurrer is not sufficient to warrant an allowance. De Stuckle v. Tehuan- tepec R. Co., 3 Civ. Pro. Rep. (N. Y. Supreme Ct.) 410. Nor is an interloc- utory judgment to account. Rudd v. Robinson, 54 Hun (N. Y.) 339. To entitle defendant to a commission on the plaintiff's claim, he must recover judgment upon the issue tried, and not recover costs only by reason of a too small recovery of plaintiff. Finder v. Stoothoff, 7 Abb. Pr. N. S. (N. Y. Su- preme Ct. ) 433 ; Wilkinson v. Tiffany, 4 Abb. Pr.(N. Y. Supreme Ct.)g8. Are- suit of the litigation which entitles the defendant to costs has been held a re- covery of judgment for such costs, and may, under proper circumstances, be made the basis of an additional allowance. Board of Comrs. of Pilots v. Spofford, 3 Hun (N. Y.)5g; Brady v. Durbrow, 2 E. D. Smith (N. Y.) 78. 213 Provisions of ADDITIONAL ALLOWANCES. the Code. and he recovers costs, 1 is entitled to recover, in addition to the costs prescribed in the last section, the following percentages, to be estimated upon the amount found to be due upon the mort- gage ; or the value of property partitioned, affected by the ad- judication upon the will or other instrument, or the claim to which is determined ; or the value of the property attached, not exceeding the sum recovered, or claimed, as the case may be : Upon a sum not exceeding two hundred dollars, ten per centum. Upon an additional sum not exceeding four hundred dollars, five per centum. Upon an additional sum not exceeding one thousand dollars, two per centum. Where such an action is settled before judgment,* the plaintiff is entitled to a percentage upon the amount paid or secured upon the settlement at one half of those rates. In an action to foreclose a mortgage upon real property where a part of the mortgage debt is not due, if the final judgment di- rects the sale of the whole property, as prescribed in section 1637 of this act, the percentages specified in this section must be com- puted upon the whole sum unpaid upon the mortgage. But if it directs the sale of a part only, as prescribed in section 1636 of this act, they must be computed upon the sum actually due; and if the court thereafter grants an order directing the sale of the remainder or a part thereof, the percentages must be computed upon the amount then due ; but the aggregate of the percentages shall not exceed the sum which would have been allowed if the entire sum secured by the mortgage had been due when the final judgment was rendered. It is not necessary that a trial should v. Dickson Mfg. Co., 61 Hun (N. Y.; have been had ; it is enough if a de- 335. fence has been interposed. Carter v. No Order Necessary. Where addi- Clark, 2 Sweeney (N. Y.) 189; Mills tional allowances are a matter of right v. Watson, 45 N. Y. Super. Ct. Rep. no motion is necessary to secure them. 591. The clerk, upon the application of a 1. The Allowance is Additional only. party entitled to costs, taxes the ad- Devlin v. New York, 15 Abb. Pr. ditional allowances as of course. N. S. (N. Y. C. PL) 31 ; Savage v. Hunt v. Middlebrook, 14 How. Pr. Allen, 2 Thomp. & C. (N. Y.) 474. (N. Y. Supreme Ct.)3Oo; Code Civ. In Case of New Trial. The order Proc. 3262. The clerk cannot, how- granting an allowance is ipso facto ever, take proof by affidavit of the rendered ineffectual by an order grant- value of the property, unless fixed by ing a new trial or setting aside the the decision or report, or by the ver- verdict. Hicks v. Waltermire, 7 How. diet of the jury, this value must be Pr. (N. Y. Supreme Ct.) 370 ; Sleight ascertained by the court. Newton v. v. Hancox, 4 Abb. Pr. (N. Y. Supreme Reid, 24 N. Y. Wkly. Dig. 472. In Ct.)245. Where a new trial is granted cases of actual partition, however, it on payment of cost, held, that an extra may be ascertained by the commis- allowance is not part of these costs, sioners. Code Civ. Proc. 3262 ; McQuade v. Lake Erie, etc., R. Co., Newton v. Reid, 24 N.Y. Wkly. Dig. 472. n How. Pr. (N. Y. Super. Ct.) 434. 2. See post, notes on Discontinu- But see Safety Steam Generator Co. ance, Offer of Judgment, and Tender. 214 Provisions of ADDITIONAL ALLO VVANCES. tae Code. Discretionary Allowances. Section 3253 of the Code of Civil Proced- ure is as follows: In an action brought to foreclose a mortgage upon real property, 1 or for the partition * of real property, 6r in a difficult and extraordinary case, 3 where a defence 4 has been inter- posed in any action, 5 the court may also, in its discretion, award to any party 6 a further sum as follows : 1. In an action to foreclose a mortgage, a sum not exceeding two and one half per centum upon the sum due or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars. 7 2. In any other case specified in this section, a sum not exceed- ing five per centum upon the amount recovered or claimed, or the value of the subject-matter involved. Sec. 3254. But all the sums awarded to the plaintiff, as prescribed in section 3252 of this act, or to a party, or two or more parties on the same side, as prescribed in the last sentence of section 3251 of this act, and in subdivision second of the last section, cannot exceed, in the aggregate, two thousand dollars. 1. Foreclosure Cases. The former Code of Procedure, section 309, was amended by the laws of 1876, chapter 431. Under this amendment it was decided in Bockes v. Hathorn, 17 Hun (N. Y.) 87, that 5 per cent could be*al- lowed in an action upon a bond and to foreclose a mortgage where the case was difficult or extraordinary or a de- fence had been interposed. This hold- ing was overruled in Rosa v. Jenkins, 31 Hun (N. Y.) 384, in which the con- struction adopted by the court of ap- peals in the case of Hunt v. Chapman, 62 N. Y. 333, was restored. The al- lowance of a greater percentage is, therefore, improper ; but the addi- tional allowance may be given al- though no defence has been put in, and the case is not difficult and ex- extraordinary. O'Neill v. Gray, 39 Hun (N. Y.) 566. An action to foreclose a mortgage on a leasehold estate is not within the restriction as to extra allowances cre- ated by subdivision i of section 3253 of the code. Huntingdon v. Moore, 59 Hun (N. Y.)35i. 2. Weed v. Paine, 31 Hun (N. Y.) 10 ; Belts v. Belts, 4 Abb. N. Cas. (N, Y. Supreme Ct.)433- Where each party is entilled to costs it may be made to both. Weed v. Paine, 31 Hun (N. Y.) 10. If neither succeeds against the other, no extra allowance can be made. Hall v. U. S. Reflector Co., 5 N. Y. Month. Bull. i. 3. See post, IV, 6, What is a Difficult and Extraordinary Case. 4. What Amounts to a Defence. A de- murrer is a defence. New York R. Co. v. Harold, 30 Hun (N. Y.) 466 ; Victor v. Halstead (Supreme Ct.), 38 N. Y. St. Rep. 407. An allowance is proper al- though the action is discontinued be- fore trial or dismissed at the circuit. Coffin v. Coke, 4 Hun (N. Y.) 616 ; Mills v. Watson, 45 N. Y. Super Ct. 591 ; Moulton v. Beecher, n Hun (N. Y.) 192 ; First Nat. Bank v. Bush, 47 How. Pr. (N. Y. Supreme Ct.) 78; Krum v. Steele, 7 N. Y. Wkly. Dig. 472. 5. The Action may be Legal or Equi- table, or partly legal and partly equi- table. Davis v. Glear, 14 How. Pr. (N. Y. Supreme Ct.) 310. 6. Party must be Successful. These words must be construed in accord- ance with the general principles upon which costs are allowed. The allow- ance cannot be made to an unsuccess- ful party. Murray v. Robinson, 9 Hun (N. Y.) 137; Brady v. Durbrow, 2 E. D. Smith (N. Y.) 78; Noyes v. Chil- dren's Aid Soc., 70 N. Y. 481. See Provost v. Provost, 7 Hun (N. Y.) 81, affirmed 70 N. Y. 140; Betts v. Belts, 4 Abb. N. Cas. (N. Y. Supreme Ct.) 317. 7. This allowance cannol be ex- ceeded. An allowance of five per cenl is unaulhorized notwilhsland- ing ihe case is difficull and exlraordi- nary. Rosa v. Jenkins, 31 Hun (N.Y.) 384; Hunl v. Chapman, 62 N. Y. 336; O'Neill v. Gray, 39 Hun (N. Y.) 566; Ferris v. Hurd, 15 Civ. Pro. Rep. (Buffalo Super. Ct.) 171. 2*5 The Application. ADDITIONAL ALLOWANCES. When Made. III. THE APPLICATION. 1. When Made. The application for an additional allowance may be made at the trial, 1 or at Special Term or Chambers.* 1. At the Trial. When the trial is by jury, the application should be made when the verdict is returned; and in any case during the term at which the trial is had. Flint v. Rich- ardson, 2 Code Rep. (N. Y.) 80; Van Rensselaer v. Kidd, 5 How. Pr. (N. Y. Supreme Ct.) 242. Where the applica- tion is made at the trial or at the same term, no notice is necessary, nor need the party against whom it is made be present in court. Mitchell v. Hall, 7 How. Pr. (N. Y. Supreme Ct.) 491. In an Action against Executors the motion cannot be heard until the court has determined plaintiff's right to re- cover ordinary costs; but the applica- tions for costs and for an additional allowance may be united in one motion. Mersereau v. Ryerss, 12 How. Pr. (N. Y. Supreme Ct.) 301. 2. After Trial. The motion may be made at any time before final judg- ment is entered and before the adjust- ment of final costs. Trimm v. Marsh, 2 Hun (N. Y.) 383; Martin v. McCor- mick, 3 Sandf. (N. Y.) 755; Clarke v. Rochester, 29 How.. De La Rionda, 131 N. Y. 422. 4. Trial. In a difficult and extraor- dinary case it is only necessary that a defence should be interposed. Under the former Code of Procedure, sec. 309, which permitted allowances where a trial was had, the word "trial," in this connection, was held to include every mode of disposing of issues in a cause, and to cover judgments by de- fault. Rogers v. Degen, 4 Bosw. (N. Y.) 669. See also Danenhover v. March, 4 Abb. Pr. (N. Y. Supreme Ct.) 254; Mora v. Great Western, 10 Bosw. (N. Y.) 622 ; Mills v. Watson, 45 N. Y. Super. Ct. 591. It is within the power of the court to grant an allowance in a case which has never been brought to trial. Lock- wood v. Salmon River Paper Co. (Su- preme Ct.), 49 N. Y. 'St. Rep. 303 ; Moulton -v. Beecher, n Hun (N. Y.) 192. 220 Where Granted ADDITIONAL ALLOWANCES. or Eefused. plaintiff submits to a nonsuit ; * or on judgment upon a de- murrer. 3 2. Subject-matter must Possess Pecuniary Value. An allowance cannot be made in any action where no property or right is in- volved upon which it is possible to place a pecuniary estimate. 3 Submission upon Statement of Facts. An allowance may be made where a difficult and extraordinary case has been submitted upon an agreed state of facts. Kingsland v. New York, 52 Hun (N. Y.) 98. But see, contra, Peo- ple v. Fitchburg R. Co., 133 N. Y. 239. But an allowance cannot be made upon the submission of a controversy with- out action where the submission pro- vides only for costs and disburse- ments. Fish v. Coster, 28 Hun (N. Y.) 64. Stipulation as to Costs. So, also, where defendant stipulated to permit judgment for an amount " with costs," held by Lawrence, J., that these words could not be construed to contemplate or include an additional allowance. Pool v. Osborn, 8 Civ. Pro. Rep. (N. Y. Supreme Ct.) 232. See also Landon v. Van Etten, 57 Hun (N. Y.) 122 ; Penfield v. James, 56 N. Y. 659. But see Coates v. Goddard, 34 N. Y. Super. Ct. 118, where the contrary was held. See also Safety Steam Generator Co. v. Dickson Mfg. Co., 61 Hun (N. Y.) 335; Jermain v. Lake Shore, etc., R. Co., 31 Hun(N. Y.) 558. In Doubtful Cases. Where the au- thority to grant is doubtful, the allow- ance should be refused. Sheehy v. Kelly, 33 Hun (N. Y.) 543 ; Gould v. Chapin,4 How. Pr. (N. Y. Supreme Ct.) 185. 1. Nonsuit. Allaire v. Lee, 4 Duer (N. Y.) 609; Woods v. Illinois Cent. R. Co., 20 How. Pr. (N. Y. Supreme Ct.) 285; Shiels v. Wortman (Supreme Ct.), 39 N. Y. St. Rep. 798. 2. Demurrer. Victor v. Halstead, (Supreme Ct.), 38 N. Y. St. Rep. 407. But no allowance can be granted where a demurrer to the jurisdiction is up- held. Genet v. Delaware, etc., Canal Co., 57 Hun (N. Y.) 174. Nor on de- murrer where leave to plead over is given. De Stuckle v. Tehuantepec R. Co., 30 Hun (N. Y.) 34. See also Small v. Ludlow, i Hilt. (N. Y.) 307 ; Lowry v. Inman, 37 How. Pr. (N. Y. Super. Ct.) 286; First Nat. Bank v. Bush, 47 How. Pr. (N. Y. Supreme Ct.) 78 ; McDonald v. Mallory, 46 N. Y. Super. Ct. 58; Kingsland v. New York, 16 Civ. Pro. Rep. (N. Y. Supreme Ct.) 323- 3. The reason why it is requisite to the granting of an allowance that the subject-matter of the action should possess a money value both capable of being estimated and also shown in evidence is because the power to grant an allowance is limited to five per cent of the (i) claim or (2) recovery or (3) the subject-matter involved ; hence it is necessary that such sum, recovery, or amount must be ascer- tained with sufficient exactness to en- able a computation of five per cent to be made. Otherwise the limitation would be inoperative, since it could never be ascertained whether five per cent had been exceeded, and the re- sult would be an unlimited power to grant an allowance. Coates v. God- dard, 34 N. Y. Super. Ct. 118. Injunction Suits. For this reason the allowance cannot be made in a suit in the nature of a simple injunc- tion bill, and no money or property is sought to be recovered. Hudson River Teleph. Co. -v. Watervliet Turn- pike, etc., Co. (Supreme Ct.), 39 N. Y. St. Rep. 966; Johnson v. Shelter Island Grove, etc., Assoc., 122 N. Y. 330; Huntingdon v. Moore, 59 Hun (N. Y.)35i; Palmers. DeWitt. 42 How. Pr. (N. Y. Super. Ct.) 466; Gressler v. Stuyvesant, 67 Barb. (N. Y.) 81; Dia- mond Match Co. v. Roeber, 35 Hun (N. Y.) 421; Perkins v. Whitney (Su- preme Ct.), 34 N. Y. St. Rep. 951. But see Williams v. Western Union Tel. Co., i Civ. Pro. Rep. (N. Y.) 294; Peo- ple v. Albany, etc., R. Co., 5 Lans. (N. Y.) 25; Conaughty v. Saratoga County Bank, 92 N. Y. 401; Brown v. Gallaudet, 19 Alb. L. J. 281; Gray v. Manhattan R. Co., 3 Misc. (N. Y.) 239. Nor in a suit to restrain the foreclosure of a mortgage. Sprong v. Snyder, 6 How. Pr. (N. Y. Su- preme Ct.) ii. But the fact that an undertaking upon injunction has been given will not prevent the grant- ing an allowance in a proper case. Williams v. Western Union Tel. Co., i Civ. Pro. Rep. (N. Y.)2g4. Nor will the granting of such allowance affect 221 Where Granted ADDITIONAL ALLOWANCES. or Refused. 3. Where Court may Exercise Discretion. There are many cases in which the court will exercise its discretion in refusing the the recovery of damages on such un- dertaking. Howell v. Miller, 5 Civ. Pro. Rep. (N. Y. C. PI.) 164; Froxell v. Haynes, 5 Daly (N. Y.) 389. Other Actions where Subject-matter has no Pecuniary Value. The allow- ance cannot be made in an action in the nature of a quo warranto. People v. Flagg. 25 Barb. (N. Y.) 652; Peo- ple v. Albany, etc., R. Co., 5 Lans. (N. Y.) 25. Nor in actions for specific performance. Weeks v. Southwick, 12 How. Pr. (N.Y. Supreme Ct.) 170. But where plaintiff sued for rescission of a contract for sale and return of de- posit, and defendant succeeded upon a counterclaim for specific perform- ance, held, that the subject-matter was the value of the land, and an allow- ance was granted defendant. Lahey v. Kortright (Super. Ct.), 32 N. Y'. St. Rep. 112. An allowance cannot be made in an action to vacate an award for misconduct of an umpire. Hoffmann v. De Graaf, 39 Hun (N. Y.) 648. Nor can an action by a vendor to foreclose a land contract. Burk- hart v. Babcock, 2 How. Pr. N. S. (N. Y. Supreme Ct.) 512. Nor to set aside a voluntary assignment. Os- borne v. Betts, 8 How. Pr. (N. Y. Su- preme Ct.) 31. Nor to set aside a con- veyance. Buchanan v. Morrell, 13 How. Pr. (N. Y. Super. Ct.) 296; Dono- van v. Wheeler, 67 Hun (N. Y.) 68. Nor to remove a corporation officer for misconduct. People v. Giroux, 29 Hun (N. Y.) 248; Conaughty v. Saratoga County Bank, 92 N. Y. 401, reversing 28 Hun (N. Y) 373. Nor to remove an assignee and appoint a re- ceiver. Meyer v. Rasquin, 20 N. Y. Wkly. Dig. 98. Nor to restrain de- fendant from increasing the height of a party-wall. Musgrave v. Sherwood, 29 Hun (N. Y.) 475. Nor to declare and enforce an easement to which no value is shown to attach. Johnson v. Shelter Island Grove, etc., Assoc., 47 Hun (N. Y.) 374, 122 N. Y. 330; Moores i>. Townshend, 8 St. Rep. (N. Y.) 893. Nor in other cases where the subject-matter of the controversy is a mere right, not directly involving any claim to property, and either has no pecuniary value or its value fails to be shown. Wood v. Lary, 47 Hun (N. Y.) 550; Malory v. Associated Lace Makers' Co. (Supreme Ct.), 28 N. Y. St. Rep. 735; People v. Ulster, etc., R. Co. (Supreme Ct.), 34 N. Y. St. Rep. 983, 128 N. Y. 240; Abell v. Brad- ner (Supreme Ct.), 39 N. Y. St. Rep. 5; Bradley v. Walker (Super. Ct.), 44 N. Y. St. Rep. 213; People v. Genessee, 95 N. Y. 666; Palmer v. De- Witt, 42 How. Pr. (N. Y. Super. Ct.) 466; Spofford v. Texas Land Co., 41 N. Y. Super. Ct. 228; People v. Rock- away Beach Imp. Co., 28 Hun (N. Y.) 356; Hanover v. Germania F. Ins. Co., 138 N. Y. 252; Adams v. Sullivan, 42 Hun (N. Y.) 278; Patterson v. Bur- nett, 17 Civ. Pro. Rep. (N. Y. Su- preme Ct.) 115; Knapp v. Hammers- ley, 13 Civ. Pro. Rep. (N. Y. Supreme Ct.) 258; Weeks v. Silver Islet Con- solidated Min., etc., Co. (Super. Ct.), 32 N. Y. St. Rep. 447; Gray v. Man- hattan R. Co., 3 Misc. (N. Y.) 239; People v. New York, etc., Ferry Co., 68 N. Y. 71; Weaver v. Ely, 83 N. Y. 89; Voorhies v. French, 47 N. Y. Su- per. Ct. 364; Heilmann v. Lazarus, 65 How. Pr. (N. Y. Ct. App.) 95; Peo- ple v. Genessee Valley Canal R. Co., 30 Hun (N. Y) 565, 95 N. Y. 666; Adams v. Arkenburgh, 106 N. Y. 615. So also, in actions for accounting, where no definite sum is claimed in the complaint, and the value of plain- tiff's alleged interest is not shown, no allowance can be granted. Budd v. Smales, N. Y. Daily Reg. 19 March, 1884; ' Coleman v. Chauncey, 7 Robt. (N. Y.) 578. But see Tol'an v. Car, 12 Daly (N. Y.) 520, where an allow- ance was computed upon the amount recovered. So also no allowance will be granted in actions for divorce. Bentley v. Bentley, 3 N. Y. Month. L. Bull. 76; Pountney v. Pountney (Su- preme Ct.), 32 N. Y. St. Rep. 334. But this does not apply to a decision in favor of the wife in an action by the husband for nullity of marriage. Grif- fin v. Griffin, 47 N. Y. 134. Reference to Determine Value. It is a useful practice for the interlocutory decree in injunction suits to provide for the ascertainment by the referee of the value (if any) of the subject- matter, with a view to determine the propriety and amount of an additional allowance. Munro v. Smith (Supreme Ct.), 25 N. Y. St. Rep. 624; Dr. jaeger Sanitary, etc., Co. v. Le Boutillier, 63 Hun (N. Y.) 298. 222 Where Granted ADDITIONAL ALLOWANCES. or Refused. allowance otherwise claimable where the circumstances are as would render it inequitable to grant it, 1 such Right to have Determination. The unsuccessful party against whom the motion is made has a right to require that the court determine the value of the property recovered or claimed in the action. Dresser v. Jennings, 3 Abb. Pr. (N. Y. Supreme Ct.) 240. Interpleader Action. The assignee of a sheriff's claim for fees having brought suit thereon, other persons interposed a claim to the fund, and were by an order of interpleader sub- stituted as defendants, the money being paid into court. Plaintiff was successful in the action. Held, allow- ance proper, especially as defendants had wholly failed to disclose the nature of their own claim to the fund. Bowery Nat. Bank v. Wilson (Su- preme Ct.), i N. Y. Supp. 473. Partnership Actions. In the action to dissolve the partnership and for an- accounting, an extra allowance was held properly made to defendant. Adams v. Arkenburgh, 106 N. Y. 615, reversing Adams v. Sullivan, 42 Hun (N. Y.) 278. But the bare fact that the action is brought for an accounting and a division of the firm assets is no ground for an extra allowance. Hin- man v. Ryder, 44 N. Y. Super Ct. 330. In any case the allowance must be rea- sonable and not excessive. Hagen- backle zt. Schultz, 69 Hun (N. Y.) 183. Nor should an extra allowance be made out of assets of the firm in the hands of a receiver where creditors would suffer. Smith v. Green, 8 Civ. Pro. Rep. (N. Y. Supreme Ct.) 163. Wills. In an action for the con- struction of a will brought by execu- tors an allowance may be made. Wet- more v. Parker, 52 N. Y. 450; Belts v. Belts, 4 Abb. N. Cas. (N. Y. Supreme Ct.) 317. But the allowances to the parties must be limited to five per cent of the subject-matter involved. Fraser v. McNaughton, 58 Hun (N. Y.) 30. Bui in a proceeding lo prove an unconlesled will an exlra allowance cannol be made lo ihe defendanl's al- lorney. Firlh v. Campbell, 53 Barb. (N. Y.) 325. Nor in a suil for ihe con- slruclion of a will where ihe courl upholds ihe irusl. Provosl v. Pro- vosl, 7 Hun (N. Y.) 81; Downing v. Marshall, 37 N. Y. 380. Nor on dis- missal of an aclion to establish a will. Perkins v. Whitney (Supreme Ct.), 34 N. Y. St. Rep. 951. The allowance musl be limiled to five per cent on the subject-malter involved. Fraser v. Mc- Naughton, 58 Hun (N. Y.) 30. 1. Discretion of Court. Thus it will not be allowed where it would require to be paid oul of a fund upon which creditors not parties to the action have claims, where it would diminish the dividend to be received by them. Smilh v. Green, 8 Civ. Pro. Rep. (N. Y. Supreme Ct.) 163; Hurd v. Farmers' L. & T. Co., 16 N. Y. Wkly. Dig. 480. But in an action to set aside an assign- ment for creditors an additional allow- ance was made, although there was nol enough lo pay all credilors. Du- rand v. Pierson (Supreme Cl.), 33 N. Y. St. Rep. 207. Stipulation for Allowance. The stipu- lation of attorneys is not sufficient lo juslify an allowance, if olherwise im- proper. Bockes v. Halhorn, 17 Hun (N. Y.) 87. Bui Ihe stipulation is sufficient against the client, unless im- peached for wanl of power. People v. Weslchester County (Supreme Ct.), 39 N. Y. St. Rep. 798 ; Palen v. Starr, 7 Hun (N. Y.) 422 ; Ferguson v. Craw- ford, 86 N. Y. 609. Against Parties Acting in Good Faith. An allowance ought nol lo be made againsl a iruslee inlerposing a defence in good faith and for the sake of pro- lecling olher inleresls in his care. Graham v. New York L. Ins., elc., Co. 46 Hun (N. Y.) 261. So also in ihe case of a surely, unless he has mis- behaved or acled in bad failh, or is possessed of the means to indemnify himself. Rice v. Wright, 3 How. Pr. (N. Y. Supreme Ct.) 405. So also an allowance should not be made against a pelilioner in lunacy where his pel - lion is dismissed bul il is apparenl that he acted in good faith. Exp. Mc- Adams, 19 Hun (N. Y.) 292. Nor againsl a plainliff in a parlilion suit brought in good faith for ihe purpose of lesling ihe righl of heirs to a divi- sion, the plaintiff being in slrail- ened circumslances. Van Brunt r. Van Brunt (Supreme Ct.), 14 N. Y. St. Rep. 887, in N. Y. 178. So also where a defence was made in good faith to an action to recover funds in Ihe hands of the city treasurer, and for the purpose of settling contro- verled righls. Field v. New York, 38 223 Where Granted ADDITIONAL ALLOWANCES. or Refused. or where no merits are disclosed upon the application. 1 Hun (N. Y.) 590. Nor should it be granted where, in a dower action, plaintiff dies after filing a consent to receive a gross sum, and the action is revived in good faith by executors who are advised that a vested right has descended to them. McKeen v. Fish, 33 Hun (N. Y.) 28. Where plaintiff, a receiver in supplementary proceedings, had sued, pursuant to leave obtained of the court, to set aside a conveyance of the judgment debtor's property, in good faith and in ignorance of an unrecorded declara- tion of trust, although the complaint was dismissed, held, in view of all the circumstances, including suspicious and misleading conduct of defendant, no case for an additional allowance. Baldwin v. Reardon, 48 N. Y. Super. Ct. 166. Nor will the court impose payment of an allowance as a term of discontinuance in an action brought by a wife for separation. Newton v. Newton, 8 Civ. Pro. Rep. (N. Y. Su- preme Ct.) 224. Hardship. Nor should an allowance be granted when to compel its pay- ment would be a great hardship to the defeated party. Baldwin v. Reardon, 48 N. Y. Super. Ct. 166 ; Losee v. Bui- lard, 54 How. Pr. (N. Y. Supreme Ct.) 319. In this case it was held that the court may, before granting an allow- ance in a difficult and extraordinary case, scrutinize the merits of the ap- plication. The decision in Lane v. Van Orden, n Abb. N. Cas. (N. Y. Su- preme Ct.) 228, to the effect that to in- troduce the consideration of hardship to the defeated party would be to im- port a factor outside the statute, has been disapproved in subsequent cases. Baldwin v. Reardon, 48 N. Y. Super. Ct. 166. See also McConnell v. Man- hattan Constr. Co., 16 Civ. Pro. Rep. (N. Y. Supreme Ct.) 310 ; Burnett v. Westfall, 15 How. Pr. (N. Y. Supreme Ct.) 420. Punishment. It has been held that the allowance should not be granted for the sole purpose of punishing the defeated party. Anonymous, 12 How. Pr. (N. Y. Supreme Ct.) 317. But conduct on the part of an applicant which does not meet the approval of the court may be considered. Mitchell v. Lane, 62 Hun (N. Y.) 253. And an allowance may properly be included with the fine and costs in contempt proceedings. People v. Rochester, etc., R. Co., 76 N. Y. 294 Imposing Terms. Payment of an al- lowance cannot be imposed as a con- dition of amendment before judg- ment. Merchants' Exch. Nat. Bank v. Commercial Warehouse Co., 35 N. Y. Super. Ct. 214. But an additional allowance was granted plaintiff after trial and after delivery of the report of the referee, where defendants ap- plied for leave to file a supplemental answer ; and the court may make pay- ment of such allowance a term of the leave. Mabie v. Adams, i N. Y. Month. L. Bull. 65. But not where a demurrer is overruled and leave to answer given. McDonald v. Mallory, 46 N. Y. Super. Ct. 58. See Williams v. Kiernan, 4 N. Y. Month. L. Bull. 41. Action by Wife. Where, in an action by a wife for a separation, the defend- ant counterclaims for a divorce, and both parties fail, held, that the wife should receive an additional allowance to repay her for the additional expense she was put to by reason of the neces- sity of meeting the charge of adul- tery. De Meli v. De Meli, 67 How. Pr. (N. Y. Supreme Ct.) 20. 1. Thus the allowance will be re- fused where plaintiff recovers a sum much less than that claimed. Fish v, Forrance, 5 How. Pr. (N. Y. Supreme Ct.) 317 ; Sands v. Sands, 6 How. Pr. (N. Y. Supreme Ct.)453. Also where defendant comes in and confesses judgment. Davison v. Waring, 9 How. Pr. (N. Y. Supreme Ct.) 254. Or where defendant makes a sufficient tender. Pratt v. Conkey, 15 How. Pr. (N. Y. Supreme Ct.) 27. But see New York F. & M. Ins. Co. v. Burrell, 9 How. Pr. (N. Y. Supreme Ct.) 398 ; Pratt v. Ramsdell, 16 How. Pr. (N. Y. Supreme Ct.) 59. The plaintiff cannot claim an additional allowance where the issue litigated was solely between de- fendants. Poillon v. Cudlipp, 50 How. Pr. (N. Y. Supreme Ct.) 366. The allowance was also refused where plaintiff takes judgment after answer for want of an affidavit of merits. Hall -v. Parker, 7 N. Y. Leg. Obs. 138. Or on a felonious answer. Hale v. Prentice, i Code Rep. (N. Y.) '81 ; Beers v. Squire, i Code Rep. (N. Y.) 84 ; Rice v. Wright, 3 How. Pr. (N. Y. Supreme Ct.) 405. Where both parties 224 Where Granted ADDITIONAL ALLOWANCES. or Refused. 4. Special Proceedings. The court has no power to grant allow- ances in special proceedings. 1 failed. Hall v. U. S. Reflector Co., 5 N. Y. Month. L. Bull. Where defen- dants unnecessarily severed in their answers. Matthewson v. Thompson, 9 How. Pr. (N. Y. Supreme Ct,) 231 ; Tillman v. Powell, 13 How. Pr. (N. Y. Supreme Ct.) 117 ; Fort v. Gooding, 9 .Barb. (N. Y.) 388. Where unnecessary actions brought. Sackett v. Ball, 4 How. Pr. (N. Y. Supreme Court) 71. And where the cases were neither diffi- cult nor extraordinary. Dexter v. Gardner, 5 How. Pr. (N. Y. Supreme Ct.) 417 ; Adams v. Herns, 29 Hun (N. Y.) 280. Also where plaintiff sued in formd pauperis and recovered a substantial amount. Marx v. Man- hattan R. Co. (Co. Ct.), 3 N. Y. Supp. 113. An extra allowance against ex- ecutors is governed by the same rules as those governing the question of costs against them. Niblo v. Binsse, 31 How. Pr. (N. Y. Supreme Ct.) 476. Party Joined at his Own Bequest. Where, in an action by heirs for par- tition, the executor of a deceased owner was added as a party at his own request, to obtain an adjudication of his rights as executor, and before the case was noticed for trial the heirs obtained an order to discontinue upon payment to the executor of $10, held, no additional allowance could be made. Woerman v. Baas (Supreme Ct.), 15 N. Y. Supp. 469. Eecovery on Technical Grounds. An extra allowance will not be granted in an action to recover back part of the sum paid to a city in payment of an assessment subsequently reduced upon a ground purely technical. Schultze v. New York, n Civ. Pro. Rep. (N. Y. Supreme Ct.) 54. 1. Matter of Holden, 126 N. Y. 589 ; Davis v. Rensselaer, etc., R. Co., 55 N. Y. 145 ; Matter of Simpson, 26 Hun (N. Y.) 459 ; Byrnes v. Labagh, 12 Civ. Pro. Rep. (N. Y. Supreme Ct.) 417; Matter of Barnett, 52 How. Pr. (N. Y. Supreme Ct.) 73; Power v. Barr, 24 Barb. (N. Y.) 142 ; Matter of New York, etc., 18 N. Y. Wkly. Dig. 536; Bonyn v. New York, 17 N. Y. Wkly. Dig. 471 ; People -v. Security L. Ins., etc., Co., 24 Hun (N. Y.) 596. Distribution in Foreclosure Cases. Nor in applications for the distribution of surplus money on a foreclosure sale, although the court may allow a suita- ble sum for costs and disbursements. New York L. Ins., etc., Co. v. Vander- bilt, 12 Abb. Pr. (N. Y. Supreme Ct.) 458 ; Hebrank v. Colell, 2 N. Y. Month. L. Bull. 39 ; Wellington v. Ulster Ice Co., 5 N. Y. Wkly. Dig. 104; German v. Sharer, 25 Hun (N. Y.)4og; McDer- motc v. Hennessy, 9 Hun (N. Y.) 59; Mowryz/. Peet, 13 N. Y. Wkly. Dig. 16. Condemnation Proceedings The extra allowance in condemnation proceed- ings provided for by section 3372, Code Civil Procedure, is intended as an in- demnity to the party prevailing for his expenses necessarily or reasonably incurred, to be determined from the proofs submitted on that question. St. Lawrence, etc., R. Co. v. DeCamp (Supreme Ct.), 52 N. Y. St. Rep. 10 ; Matter of Lake Shore, etc., R. Co., 65 Hun (N. Y.) 538. See under former practice, Matter of New York, etc., R. Co., 18 N. Y. Wkly. Dig. 536. The court has power to award an additional allowance to defendant in condemnation proceedings even though no answer was interposed, provided no offer to purchase was made. Matter of Lake Shore, etc., R. Co., 65 Hun (N. Y.) 538. Feigned Issues. An allowance can- not be made upon a trial of an issue in the nature of a feigned issue. Bur- ritt v. Silliman, 24 How. Pr. (N. Y. Supreme Ct.) 337. Mechanics' Liens. Prior to the Me- chanics' Lien Act of 1885 it was held that, under the law as it then stood (Laws of 1875, chapter 379), no author- ity existed to grant extra allowances. Ruth v. Jones, i N. Y. Month. L. Bull. 61 ; Hagan v. American Baptist, etc., Soc. (C. PL), 6 N. Y. St. Rep. 219; Randolph v. Foster, 3 E. D. Smith (N. Y.) 648. But under the later statute (Laws of 1885, chapter 342), section 7 of which provides that the lien may be enforced in a civil action, it has been held that if the action to foreclose the lien be difficult and extrordinary, an addi- tional allowance may be granted. Lawson v. Reilly, 13 Civ. Pro. Rep. (N. Y. C. PL) 290; Horgan v. McKen- zie (C. PL), 43 N. Y. St. Rep. 131. The statute fee of $60 under section 3252 Code Civ. Pro. cannot, however, be allowed, as an action to foreclose a mechanics' lien is not properly I Encyc. PL & Pr. 15. 225 Where Granted ADDITIONAL ALLOWANCES. or Refused. 5. Where Defendant is Entitled. The Code provides that in certain cases the defendant, being the prevailing party, is, as well as the plaintiff, entitled to additional allowances. 1 6. What are Difficult and Extraordinary Cases. Meaning of the Term. The term "difficult and extraordinary" implies something more and other than usual, common, and ordinary in respect to the skill and labor required, or in the time occupied in the preparation and trial of a cause, or both ; a the words of the Code should re- an action to determine a claim to real property, and is not specially included in the section. Wright v. Rensens (Supreme Ct.), 39 N. Y. St. Rep. 802. 1. On Counterclaim. In an action to rescind an agreement to purchase real property, where the defendant obtains judgment in his favor upon his counterclaim demanding specific performance, the court may grant de- fendant an allowance based on the value of the property. Lahey v. Kort- right, 58 N. Y. Supe'r. Ct. 576. Where plaintiff claimed in an action for breach of covenants contained in a lease, and defendant was allowed two thousand dollars on a counterclaim, being nearly one fifth of plaintiff's claim, it was held that an extra allow- ance to defendants was properly grant- ed. McCulloch v. Dobson (Supreme Ct.), 39 N. Y. St. Rep. 908. Offer to Allow Judgment. A defend- ant is allowed an extra allowance where before issue joined he has served an offer to allow judgment, and the plaintiff has failed to obtain a more favorable recovery. Hirschspring v. Bol, 20 Abb. N. Cas. (N. Y. City Ct.) 402. See, under former code, McLees v. Avery, 4 How. Pr. (N. Y. Supreme Ct.)44i ; Magnin v. Dinsmore, 47 How. Pr. (N. Y. Super. Ct.) II. So, also, where a defendant recovers a judgment for the costs accruing sub- sequent to an offer to allow judgment to be taken against him, such judg- ment may, under proper circumstances, be made the basis for an additional allowance. Board of Comrs. of Pilots v. Spofford, 3 Hun (N. Y.) 57. So, also, defendant may, in a proper case, have an allowance where plaintiff re- covers less than $50. Brady v. Dur- brow, 2 E. D. Smith (N. Y.) 78. Discontinuance. When there is a dis- continuance, a defendant cannot obtain an allowance upon a greater basis than that upon which plaintiff's allowance would have been computed had he succeeded. McConnell v. Manhattan Constr. Co., 16 Civ. Pro. Rep. (N. Y. Supreme Ct.) 310. Death of Plaintiff After Verdict. The right of a defendant, where a judg- ment is rendered in his favor, to an additional allowance is not affected by the death of one of the plaintiffs after verdict. The right to costs, of which the allowance was part, became abso- lute the moment the verdict was ren- dered, and by virtue of its rendition. Arthur v. Schriever, 60 N. Y. Super. Ct. 59- Allowance Refused. Extra costs will not be given where defendants have unnecessarily severed in their de- fences. Tillman v. Powell, 13 How. Pr. (N. Y. Supreme Ct.) 117. And they may be ordered to pay costs and an al- lowance. Fort v. Gooding, 9 Barb. (N. Y.) 388. Nor will an extra allowance be made where two defendants appear by different attorneys and recover double costs. Matthewson v. Thomp- son, 9 How. Pr. (N. Y. Supreme Ct.) 231. Where a defendant is a prevailing party against a codefendant, he is not entitled to costs where the plaintiff is so entitled. Devlin v. New York, 15 Abb. Pr. N. S. (N. Y. C. PI.) 34. Nor if the only issues which make the case a difficult and extraordinary one are decided in favor of the plaintiff. Board of Comrs. of Pilots v. Spofford, 4 Hun (N. Y.) 74. Nor where the plaintiff re- covers only nominal damages. Mur- ray v. Robinson, 9 Hun (N. Y.) 137 ; Pinder v. Stoothoff, 7 Abb. Pr. N. S. (N. Y. Supreme Ct.) 433. An extra allowance should not be granted to one whose only interest is an inchoate right of dower in plaintiff's share, nor a second mortgagee. Dore- mus v. Crosby, 66 Hun (N. Y.) 125. 2. Previous to 1859 the power was conferred to order additional allow- ances of costs when the case was either difficult or extraordinary; but in that year the provision was changed, rendering it necessary that 226 Where Granted ADDITIONAL ALLOWANCES. or Refused. ceive their ordinary popular meaning. 1 No General Eule. No general rule can be laid down to deter- mine what cases are difficult and extraordinary; each case will be decided upon its own merits.'-* it should be both difficult and extra- ordinary before any allowance could be made. See Duncan -v. DeWitt, 7 Hun (N. Y.) 184; also remarks of Barnard, J., in Woods v. Illinois, Cent. R. Co., 20 How. Pr. (N. Y. Su- preme Ct.) 285. Under section 308 of the Code of Pro- cedure it was in an early case held that all litigated trials are difficult or ex- traordinary. Dyckman v. McDonald, 5 How. Pr. (N. Y. Supreme Ct.) 121; see also Niver v. Rossman, 5 How. Pr. (N. Y. Supreme Ct.) 153. But this construction was disapproved in later cases. Fox v. Gould, 5 How. Pr. (N. Y. Supreme Ct.) 278; Sands v. Sands, 6 How. Pr. (N. Y. Supreme Ct.) 454; Dexter v. Gardner, 5 How. Pr. (N. Y. Supreme Ct.) 417; Howard v. Rome, etc., Plank Road Co., 4 How. Pr. (N. Y. Supreme Ct.) 416; Fox v. Fox, 22 How. Pr. (N. Y. Supreme Ct.) 454; Gooding v. Brown, 35 Hun (N. Y.) 154. See Bostwick v. Menck, 40 N. Y. 383; Colton v. Morrissy, 6 N. Y. Wkly. Dig. 165. 1. Duncan v. DeWitt, 7 Hun (N. Y.) 184. 2. Discretion of the Court. Schwartz v. Poughkeepsie Mut. F. Ins. Co., 10 How. Pr. (N. Y. Supreme Ct.) 93. The discretion, of the court is absolute. Morss v. Hasbrouck, 13 N. Y. Wkly. Dig. 393; Union Bank v. Mott, 13 Abb. Pr. (N. Y. Supreme Ct.) 247. And the deter- mination of what is difficult and ex- traordinary involves so many con- siderations addressed to this discre- tion that an appellate court rarely in- terferes. Morrison v. Agate, 9 N. Y. Wkly. Dig. 286; Tolman v. Syracuse, etc., R. Co., 31 Hun (N. Y.) 397. To justify reversal, a clear abuse of this discretion must be shown. Bryon v. Durrie, 8 N. Y. Wkly. Dig. 57, 6 Abb. N. Cas. (N. Y. Supreme Ct.) 135. See also People v. Albany, etc., R. Co., 16 Abb. Pr. (N. Y. Supreme Ct.) 465; Gooding v. Brown, 35 Hun (N. Y.) 153- Long Trial. It has been held that the length of time occupied at the trial is not, of itself alone, a proper subject for consideration in deter- mining an extra allowance, more es- pecially if the defeated party in no way contributed to the expenditure of time. Sands v. Sands, 6 How. Pr. (N. Y. Supreme Ct.)453. But the extreme length of a trial may render a case extraordinary. Howard v. Rome, etc., Plank Road Co., 4 How. Pr. (N. Y. Supreme Ct.) 416; Fox v. Fox, 22 How. Pr. (N. Y. Supreme Ct.) 454; Fort v. Gooding, 9 Barb. (N. Y.) 388. See also Dexter v. Gardner, 5 How. Pr. (N. Y, Supreme Ct.) 417; Powers v. Wolcott, 12 How. Pr. (N. Y. Su- preme Ct.) 565. So also may the examination of a large number of expert witnesses in a case where the issues were bitterly contested. Mc- Culloch v. Dobson (Supreme Ct.), 39 N. Y. St. Rep. 908. Amount Involved. The amount in- volved may properly be considered ; as the fact that a large amount of money depends upon the decision of a case increases the responsibility and anxiety of the attorney, and justifies the employment of eminent counsel. Gooding v. Brown, 35 Hun (N. Y.) 153. Thus in an action concerning property of the value of $80,000, the rent thereof being $8000, and the de- cision involving a vexed question of law, an extra allowance of $500 coun- sel fees to the prevailing party was held proper, although the trial of the case occupied but little time. Van- deveer v. Vanderveer (Supreme Ct.), I N. Y. Supp.8g7. So, also, where, in an action of contract, plaintiff asked judgment for $33,000 against de- fendant, but wholly failed to maintain his action, upon a recovery being had against plaintiff an additional allow- ance was held proper. Ract v. Duviard-Dime, 4 N. Y. Supp. 161, 51 Hun (N. Y.) 639. So, also, where two actions, tried together, to restrain the removal by lessees of certain per- sonal property from the demised premises, involved the title to such property, the value of which was shown in one case to be $1000, and in the other $15,000; held, that allow- ances, in addition to costs, of $50 in the former case and $250 in the la;t*r, were proper and reasonable in amount. 227 Where Granted ADDITIONAL ALLOWANCES. or Refused. 7. On Discontinuance. An additional allowance may be made, after issue joined, upon the discontinuance of the action. 1 Loeser v. Liebmann, 14 N. Y. Supp. 569, 60 Hun (N. Y.) 579- Joinder of Several Causes of Action. Where a complaint sets forth nine- teen different causes of action, most of them acquired by the plaintiff by as- signment from the persons in whose favor they were alleged to exist, and the trial of the action, as well as the preparation of the answer, required the examination of the facts of each of these causes of action, and the trial resulted in the dismissal of the com- plaint as to three causes of action, and in judgment in favor of the defend- ant upon seven causes of action (upon which the complaint demanded judg- ment for $11,422.20), and the dismissal of the complaint as to three other causes of action, and in favor of the plaintiff upon the other causes of ac- tion, held, that the case was both diffi- cult and extraordinary, and that allow- ances of $500 to the defendant and five per cent to the plaintiff upon the amount of his recovery were properly made. Durant v. Abendroth, 48 Hun (N. Y.) 16. Immaterial Considerations. On the other hand, an allowance cannot be made where the only difficulty in the case is caused by plaintiff claiming more than he is entitled to. Hinman v. Ryder, 44 N. Y. Super Ct. 330. Or by a counterclaim as to which plain- tiff does not succeed. Lake Erie, etc., R. Co. v. Carhart, 39 Hun (N. Y.) 363. Or by charges in the complaint subsequently withdrawn. Hinman v. Ryder, 44 N. Y Super C& 330. Or by an anticipated appeal. People v. New York Cent. R. Co., 30 How. Pr. (N. Y. Supreme Ct.) 148. 1. Stallman v. Kimberly (Supreme Ct.) 33 N. Y. St. Rep. 313. But see People v. Ulster, etc., R. Co., 128 N. Y. 240. Receiving costs upon the dis- continuance of an action does not necessarily prejudice a motion for ad- ditional allowance. Moulton v. Beecher, i Abb. N. Cas. (N. Y. Su- preme Ct.) 245. Before Trial. It was held under sec- tion 309 of the former Code of Pro- cedure that an extra allowance could be granted upon plaintiff's discontinu- ance before trial. Coffin v. Coke, 4 Hun (N. Y.) 616; Moulton v. Beecher, ii Hun (N. Y.) 192; Robins v. Gould, i Abb. N. Cas. (N. Y. Supreme Ct.) 133; Folsom v. Van Wagoner, 7 Lans. (N. Y.) 309, 14 Abb. Pr. N. S. (N. Y.) 44; McDonald v. Mallory, 46 N. Y. Super. Ct. 58. Terms. Held, also, that the court might require payment of such allow- ance, in a proper case, as a condition of allowing the discontinuance, even where there is an objection to the jurisdiction. Bright v. Milwaukee, etc., R. Co., i Abb. N. Cas. (N.Y. Su- preme Ct.) 14. Or as a term of setting aside a judgment. Ellsworth v. Good- ing, 8 How. Pr. (N. Y. Supreme Ct.) i. Where an application is made for leave to discontinue, the court may fix, in a proper case, the amount of an extra allowance which the plaintiff should pay the defendants as one of the conditions of leave to discontinue being granted. Society of New York Hospital v. Coe, 15 Hun (N. Y.) 440. After plaintiff Las obtained leave to discontinue upon payment of the ad- justable costs, the defendant may apply for and obtain an order for an increased allowance, which, in order to avail himself of the leave to discon- tinue, the plaintiff must pay, together with the adjustable costs. Moulton v. Beecher, n Hun (N. Y.) 192; Society of New York Hospital v. Coe, 15 Hun (N. Y.) 440. To Plaintiff's Attorney. Where the parties have come together and have agreed to discontinue upon payment of costs to the plaintiff, the court may require, as a condition of discontinu- ance, an additional allowance to be paid to the plaintiff's attorney. Brown v. Safeguard Ins. Co., 7 Abb. Pr. (N. Y. Supreme Ct.)345; Bartow v. Cleve- land, 7 Abb. Pr. (N. Y. Supreme Ct.) 339; Bryon v. Durrie, 6 Abb. N. Cas. (N. Y. Supreme Ct.) 135. See also Danenhover v. March, 4 Abb. Pr. (N. Y. Supreme Ct.) 254; Folsom v. Van Wagner, 14 Abb. Pr. N. S. (N. Y. Su- preme Ct.) 44. Code of Procedure. Under the former code it was held that where an attach- ment suit was settled before trial and before judgment, no additional allow- ance could be granted. Brace v. Beatty, 7 Abb. Pr. (N. Y. Supreme Ct.) 44. But this did not apply to equitable ac- tions. The statute (now appearing as sec. 731 Code Civ. Pro.), while not in 228 Where Granted ADDITIONAL ALLOWANCES. or Refused. 8. Only One Allowance. An allowance can be granted but once in the action ; T it cannot be granted upon any interlocutory judg- ment, where leave to plead over is given. 2 terms limited to common-law actions, has been so construed. New York F. 6 M. Ins. Co. v. Burrell, 9 How. Pr. (N. Y. Supreme Ct.) 398; Connecti- cut River Banking Co. v. Voorhies, 3 Abb. Pr. (N. Y. Supreme Ct.) 173; Pratt v. Ramsdell, 7 Abb. Pr. (N. Y. Supreme Ct.) 340, note. Sect. 385 of the former Code of Procedure was re- enacted as sec. 738 of the present Code of Civ. Pro. without alteration. This section was held to apply to foreclo- sure actions where an order for a per- sonal deficiency was asked. Bathgate v. Haskin, 63 N. Y. 261. After Discontinuance. After the mak- ing of an order of discontinuance the cause is at an end, and a motion for an extra allowance cannot then be heard. Harlem Bridge, etc., R. Co. v. Westchester, 76 Hun (N. Y.) 286. Tender. In foreclosure plaintiff is entitled to an additional allowance, notwithstanding a tender of the prin- cipal, interest, and costs before hear- ing. Astor v. Palache, 49 How. Pr.(N. Y. C. PI.) 231; Bartow v. Cleveland, 7 Abb. Pr. (N. Y. Supreme Ct.) 339; Connecticut River Banking Co. v. Voorhies, 3 Abb. Pr. (N. Y. Supreme Ct.) 173; New York F. & M. Ins. Co. v. Burrell, 9 How. Pr. (N. Y. Supreme Ct.) 398. See also Brace v. Beatty, 7 Abb. Pr. (N. Y. Supreme Ct.) 445. Notwithstanding tender of costs and notice of discontinuance, the com- plaint may be subsequently dismissed and an allowance granted to defend- ant. Moffatt v. Ford, 14 Barb. (N. Y.) 577- Offer to Allow Judgment. Where plaintiff accepts defendant's offer of judgment for a stated amount and costs, the court has no power to grant an extra allowance. Pool v. Osborn (Supreme Ct.), 8 N. Y. Civ. Pro. Rep. 232. Where defendant's offer of judg- ment was more favorable than plain- tiff's actual recovery, an additional al- lowance may be granted defendant. Landon v. Van Etten (Supreme Ct.), 32 N.Y. St. Rep. 439; Hirschspring v. Boc, 20 Abb. N. Cas. (N. Y. City Ct.) 402, 13 Civ. Pro. (N. Y.) 125. But see Magnin v. Dinsmore, 47 How. Pr. (N. Y. Super. Ct.) n. See also McLees v. Avery, 4 How. Pr. (N. Y. Supreme Ct.)44i; Penfield v. James, 56 N. Y. 659; Austin v. Hartwig, 49 N. Y. Super. Ct. 259. As to the effect of an offer to allow judgment in foreclosure cases cutting off plaintiff's right to an additional allowance, see Coates v. Goddard, 34 N. Y. Super. Ct. 118; Astor v. Palache, 49 How. Pr. (N. Y. C. PI.) 231; Bartow v. Cleveland, 7 Abb. Pr. (N. Y. Supreme Ct.) 339; Penfield v. James, 56 N. Y. 659; Pratt v. Ramsdell, 7 Abb. Pr. (N. Y. Su- preme Ct.) 340, note. 1. Former Code. So held under Code of Procedure, sec. 309. Flynn v. Equi- table L. Assur. Soc., 18 Hun (N. Y.) 212. 2. Given for the Trial. The allow- ance is given for the trial of the action, not for the appeals. Wolfe v. Van Nostrand, 2 N. Y. 570. The case of Eldridge v. Strenz, 39 N. Y. Super. Ct. 295, which held that after the Court of Appeals, on appeal from an order granting a new trial, has rendered a judgment absolute, the court below should not grant an allowance, is op- posed to the holding in Parrott v. Sawyer, 26 Hun (N. Y.) 466. See re- marks on these cases in the opinion of Gildersleeve, J., in Monnet v. Merz, 30 Abb. N. Cas. (N. Y. Super. Ct.) 282. Partition Suits. Where, on a decree for partition and sale, an additional allowance is made, a further allow- ance cannot be made in the same action upon the making of the subsequent decree confirming the sale and direct- ing the distribution of the proceeds. Brewer v. Brewer, II Hun (N. Y.) 147, affirmed 72 N. Y. 603. Partner ship Suits. In partnership ac- tions the allowance cannot be made in the interlocutory judgment award- ing the reference and appointing a re- ceiver. Spitz v. Tousey, 22 N. Y. Wkly. Dig. 446. Judgment Set Aside. The allowance being made upon a judgment, if this judgment is set aside all the incidents, of which the allowance is one, are also set aside and vacated. Union Trust Co. v. Whiton, 17 Hun (N. Y.) 593. The Code contemplates but one allow- ance, and that only upon final judg- ment. De Stuckle v. Tehuantepec R. Co., 30 Hun (N. Y.) 34; Monnet v. 229 How Computed. ADDITIONAL ALLOWANCES. Basis. V. How ALLOWANCE COMPUTED. 1. Basis of Allowance. The amount of the allowance, within the limits prescribed by the statute, 1 is entirely discretionary with the Special Term ; a the amount of the claim, or recovery, is the limit, not the measure, of the allowance. 3 The additional allowance may be computed upon the subject-matter of the action 4 or upon the amount re- Merz, 30 Abb. N. Cas. (N. Y. Super. Ct.) 281 ; Bank of Mobile v. Phcenix Ins. Co., 8 Civ. Pro. Rep. (N. Y. Su- preme Ct.) 212 ; Merchants' Exch. Nat. Bank v. Commercial Warehouse Co., 35 N. Y. Super. Ct. 214 ; McDonald v. Mallory, 46 N. Y. Super. Ct. 58. Ejectment. Upon the second trial of an ejectment granted under section 1525 of the Code the court may grant an extra allowance, although one was granted and paid upon the first trial, and although the two allowances to- gether exceed five per cent of the value of the property in dispute. Wing v. De La Rionda (B'klyn City Ct.), 39 N. Y. St. Rep. 119 ; approved in Bol- ton v. Schriever (Ct. App.), 47 N. Y. St. Rep. 870 ; on appeal, 131 N. Y. 422. See also Stallman v. Kimberly (Su- preme Ct.), 33 N. Y. St. Rep. 813; Hoag v. Greenwich (Supreme Ct.), 39 N. Y. St. Rep. 975. 1. Limits of Allowance. The allow- ance to any single plaintiff, or to any number of plaintiffs, cannot exceed $2000 ; nor can the allowance to any single defendant or to any number of defendants exceed that sum. The lim- its are $2000 to each side, or $4000 in all. See Noyesz/. Children's Aid Soc., 3 Abb. N. Cas. (N. Y. Ct. App.), 37, note ; Allis v. Wheeler, 56 N. Y. 50. The statutory restriction has no appli- cation on a motion for favor. New York, etc., R. Co. v. Thome, i How. Pr. N. S. (N. Y. Supreme Ct.) 190. Disbursements not Included. In com- puting the extra allowance, the fees paid to the court stenographer are not to be considered ; they are a disburse- ment merely, and not properly costs. Down v. McGourkey, 15 Hun (N. Y.) 444, 78 N. Y. 614. So, also, the allow- ance to a guardian in partition is not included in or limited by the sum of $2000 fixed by section 3254. Weed v. Paine, 31 Hun (N. Y.) 10. Limit in Foreclosure. In actions to foreclose a mortgage on real property, the allowances are limited to $60 by the statute and $200 by the court. Note to Pool v. Osborn, 8 Civ. Pro. Rep. (N. Y. Supreme Ct.)232; Weed v. Paine, 4 Civ. Pro. Rep. (N. Y. Su- preme Ct.) 305. In no case may the allowances exceed five per cent of the amount claimed. Lane v. Van Orden, ii Abb. N. Cas. (N. Y. Supreme Ct.) 228. 2. Union Bank v. Mott, -13 Abb. Pr. (N. Y. Supreme Ct.) 247. 3. People v. New York Cent. R. Co., 30 How. Pr. (N. Y. Supreme Ct.) 148. The words "amount of recovery or claim " indicate and mean that the re- covery or claim shall be for a sum of money; the word, "subject-matter involved " being used to cover all other cases. Coates v. Goddard, 34 N. Y. Super. Ct. 118. 4. Subject matter in Actions relating to Land. In an action for partition, the value of the whole property, and not the value alone of plaintiff's share, is the subject-matter involved. Doremus v. Crosby, 66 Hun (N. Y.) 125. So in trespass to real property, where the question of title is the paramount is- sue, the allowance may be computed upon the value of the property in- stead of the amount of damages. The cases recognize a broad distinction be- tween an action of trespass to recover damages based on actual possession and an action which involves the right to the possession of the land: in the latter case the question of title is involved; but not in the former, as title is presumed. Warren v. Buck- ley, 2 Abb. N. Cas. (N. Y. Supreme Ct.) 323. Similarly, in an action to abate a nuisance, the subject-matter involved being the nuisance and the damages caused thereby, the allow- ance is Computed upon the amount of the damages, not upon the value of the property. Rothery v. New York Rubber Co., 24 Hun (N. Y.) 172, 90 N. Y. 30. So, also, where, in an action by an abutting owner, the referee found 8800 fee damage, held, that this amount represented the subject-matter involved. Dode v. Manhattan R. Co., 230 How Computed. ADDITIONAL ALLOWANCES. Basis. 70 Hun (N. Y.) 376. So in an action to enforce a covenant in the nature of a building restriction, the easement is the subject-matter involved. Lattimer v. Livermore, 72 N. Y. 174; Atlantic Dock Co. v. Libby, 45 N. Y. 504. So, in an action by a purchaser to recover back his deposit and expenses of search of title, held, that these were the subject-matter involved, and not the land. Moore v. Appleby, 36 Hun (N. Y.) 371, 108 N. Y. 237. And in an action by a judgment creditor to set aside a fraudulent conveyance, the additional allowance was computed upon the amount of plaintiff's judg- ment, and not upon the value of the land. Potter v. Farrington, 24 Hun (N. Y.) 551; Hoos v. Person, 15 N. Y. Wkly. Dig. 530; Remington Paper Co. v. O'Dougherty, 18 N. Y. Wkly. Dig. 190; Baldwin v. Reardon, 48 N. Y. Super. Ct. 166. The subject-matter of the action is the primary right sought to be enforced; Christopher St., etc., R. Co. v. Twenty-third St. R. Co. (Supreme Ct.), 48 N. Y. St. Rep. 805. In an action by a taxpayer to restrain a town from carrying out a contract to build a bridge, held, that the contract price is the proper basis for an allow- ance. Barker v. Oswegatchie, 62 Hun (N. Y.) 208. In an action fbr royalties on produc- tion of a dramatic composition, where the complaint alleged a contract to pay fifteen dollars for each performance, and [alleged there had been 300 per- formances, held, that this furnished a sufficient basis for calculating an al- lowance. Carpenter v. Shook (Su- preme Ct.), 43 N. Y. St. Rep. 226. Proof of Value. In an action of ejectment, where there was no proof of the value of the lands in question, it was held that an allowance to the defendant might be computed upon the amount of damages "claimed by the plaintiff. Rank v. Grote, 50 N. Y. Super. Ct. 275. And where it was sought to restrain the enforcement of a judgment in summary proceedings to regain possession, it was held that the value of the leasehold, and not of the freehold, was the proper basis. Sheehy v. Kelly, 33 Hun (N. Y.) 543. Attachment. Where an attachment has been vacated upon giving bond, the amount of the additional allow- ance is properly computed on the amount of the bond which takes the place of the attached property. Han- over Bank v. Linneworth, 7 Hun (N. Y.) 234. But if the sheriff has made no return of appraisal of value, it is for the plaintiff to establish by affi- davit or otherwise the value of the property attached. Fetchman v. Dav- enport, 8 Civ. Pro. Rep. (N. Y. City Ct.) 220. Bank Stock. Where the precise value of bank stock is not shown, the pre- sumption may in some cases be made, for the purpose of computing the al- lowance, that it is worth par. Smith v. Baker, 42 Hun (N. Y.) 504. But the value of bank stock must as a rule be proved. Weeks v. Silver Islet Con- solidated Min., etc., Co., 32 N. Y. St. Rep. 417. Trade-mark Where, by affidavit, a. trade-mark is proved to be worth $50,000 at least, and the profits upon it to be worth $3000 a year, an allow- ance of $250 was held properly made. Waterman v. Shipman (Supreme Ct.), 47 N. Y. St. Rep. 418. But where un- defined and unascertained interests, dependent wholly upon the result of previous inquiry, are in question and the main relief is denied, there is nothing upon which an allowance may be based. So held in an action to restrain infringement of a trade- mark and for incidental damages from alleged profits, where it was held plaintiff failed in establishing a right to the trade-mark, no sum being therefore recovered or claimed, and the "subject-matter involved," i.e., the trade-mark, having no value, and being, indeed, non-existent. Jaeger v. Le Boutillier, 63 Hun (N. Y.) 297. In an action for damages for the in- fringement of a trade-mark and for an injunction to restrain the use of it, it was held that the allowance should be computed upon the value of the trade-mark, and not merely upon the amount of damages recovered. Munro v. Smith, 23 Abb. N. Cas. (N. Y. Su- preme Ct.) 275. In this case the un- contradicted testimony of the plaintiff was that the value of the trade-mark was $50,000, and that he had expended that sum in advertising it; and the al- lowance was Computed upon this sum. The case is distinguished from the somewhat similar case of Coates v. Goddard, 34 N. Y. Super. Ct. 118, upon the ground that there the trade- mark and its infringement constituted the subject-matter involved, the plain- 231 How Computed. ADDITIONAL ALLOWANCES. Basis. covered 1 or claimed ; a and the amount of a counterclaim may tiff had not recovered a money judg- ment, but merely one decreeing an injunction perpetual, and no money value was shown to attach to the trade- mark apart from the article to which it was a trade-mark. The case is not authority for the general proposition that additional allowances may be granted in suits for injunctions to prevent infringements of trade-marks, or in cases where merely equitable rights susceptible of a money value are involved. In Munro v. Smith (Supreme Ct.), 25 N. Y. St. Rep. 624, the actual value of the trade-mark was proved by uncontradicted evi- dence. Christopher St., etc., R. Co. -v. Twenty-third St. R. Co. (Supreme Ct.), 48 N.Y. St. Rep. 805. See also Collins v. Reynolds' Card Mfg. Co., 2 N. Y. Month. L. Bull. 45. Proper Basis. The value of the prop- erty to be directly affected by the re- sult of the action forms the proper basis for computing the percentage. People v. Albany, etc., R. Co., 16 Abb. Pr. (N. Y. Supreme Ct.) 465 ; Coleman v. Chauncey, 7 Robt. (N. Y.) 579. Property or rights having an ascertainable value in money must be directly involved. People v. Adams, 128 N. Y. 129 ; Munro v. Smith (Su- preme Ct.), 25 N. Y. St. Rep. 624. 1. Amount Recovered. Where the re- covery is of a specified sum and in- terest, the allowance is computed upon the total sum of principal and interest. Clegg v. Aikens, 17 Abb. N. Cas. (N. Y. Supreme Ct.) 88 ; Struthers v. Pearce, 51 N. Y. 357. Whether, in the computation, interest should first be added to the verdict is not clear. Sinne v. New York, 8 Civ. Pro. Rep. (N. Y. Supreme Ct.) 252 ; Bord v. New York etc., R. Co., 14 Abb. N. Cas. (N. Y. Su- preme Ct.) 496, 6 Civ. Pro. Rep. (N. Y.) 222. In the former case, an action for causing death, it was held that the additional allowance should be com- puted upon the amount awarded by the jury, but not on that sum plus the interest which sec. 1904 Code Civ. Pro. directs the clerk to add. Where the action is for a personal injury, the court may make an extra allowance upon the verdict. Gale v. New York Cent, etc., R. Co., 53 How. Pr. (N. Y. Supreme Ct.) 385. If no amount be claimed in either complaint or answer, the allowance should be based upon the amount recovered in the judgment. Tolan v. Carr, 12 Daly (N. Y.) 520. Where complaint demanded such sum as may be due plaintiff on an account- ing, and no sum is mentioned, held, that no data existed for computing an allowance. Coleman v. Chauncey, 7 Robt. (N. Y.) 578 ; People v. Albany, etc., R. Co., 16 Abb. Pr. (N. Y. Su- preme Ct.) 465. The extra allowance may be computed upon the amount re- covered as fee damage in an action against an elevated railroad. Dode z>. Manhattan R. Co., 70 Hun (N. Y.) 370; Hamilton -v. Manhattan R. Co., 24 Abb. N. Cas. (N. Y. Super. Ct.) 156, 29 N. Y. St. Rep. 28. 2. Amount Claimed. Plaintiff's al- lowance cannot be based upon the amount of damages claimed. Saratoga, etc., R. Co. v. McCoy, 9 How. Pr. (N. Y. Supreme Ct.) 339 ; Lahey v. Kort- right, (Super. Ct.) 32 N. Y. St. Rep. 112 ; DeLancey v. Piepgras, 76 Hun (N. Y.) 70. It is only where the de- fendant recovers judgment that the allowance can be computed upon the amount claimed. Wilkinson v. Tif- fany, 4 Abb. Pr. (N. Y. Supreme Ct.) 98 ; Coates v. Goddard, 34 N. Y. Super. Ct. 118. Where plaintiff, with his summons, serves a notice of claim naming a specific sum, this is plain- tiff's statement of the amount in- volved, and he cannot be heard to say, upon defendant's motion for an allow- ance, that the notice is a nullity. Adams v. Arkenburgh, 106 N. Y. 615. So where, in ejectment, plaintiff at the trial limited his claim to part only of the premises set out in the com- plaint, held, that defendant's allow- ance was properly computed upon the value of the entire premises. Burton v. Tremper, 27 N. Y. Wkly. Dig. 246. So also where the only evidence of value of the subject-matter was con- tained in the undertaking issued by the plaintiff, this was held to form the basis of allowance. National Steam- ship Co. v. Sheahan (Ct. App.), n N. Y. St. Rep. 891. And where the com- plaint contained no statement of an amount, but plaintiff's counsel in his opening virtually claimed an amount, the latter was taken as a statement of the subject-matter involved. Rutty v. Person, 6 Civ. Pro. Rep. (N. Y. Super. Ct.) 25. Defendant's Allowance. And where 232 How Computed. ADDITIONAL ALLOWANCES. Subject-matter. also be taken into account. 1 2. Subject-matter Involved. The word " involved " in this con- nection means "affected." 2 In an action of ejectment the real property is the subject-mat- ter involved ; 3 in personal actions, the amount of the personal property. 4 defendant recovers a balance under a counterclaim, the amount of his extra allowance may be calculated on the plaintiff's claim, not upon the sum re- covered only. Vilmar v. Schall, 61 N. Y. 564. In an action to enforce certain judgments against real prop- erty upon which defendant held a mortgage, held, defendant's additional allowance was properly computed upon the amount of plaintiff's claim, although the land was ordered sold. Remington Paper Co. -v. O'Dougherty, 18 N. Y. Wkly. Dig. 190. See also Potter v. Farrington, 24 Hun (N. Y.) 551 ; Noyes v. Children's Aid Soc., 3 Abb. N. Cas. (N. Y. Ct. App.) 36 ; Sentenis v. Ladew, 140 N. Y. 463. 1. Amount of Counterclaim. In an ac- tion to recover a sum certain, where the defence was a set-off, the plaintiff was held entitled to an allowance not merely upon the amount of his recov- ery, but also upon the set-off. Barclay v. Culver, 4 Civ. Pro. Rep. (N. Y. Su- preme Ct.) 365 ; Lissberger v. Schoen- berg Metal Co., 2 N. Y. City Ct. Rep. 158; Woonsocket Rubber Co. v. Rubber Clothing Co., i Civ. Pro. Rep. (N. Y.) 350. But no allowance will be made plaintiff upon a counterclaim where the complaint is dismissed. Hammann v. Jordan (Super. Ct.), 36 N. Y. St. Rep. 434. Nor where by establishing a counterclaim defendant reduces plaintiff's recovery. New York v. Car- hart, 39 Hun (N. Y.) 363. Nor where the counterclaim was necessarily de- feated by the success of the plaintiff. Barnes v. Denslow (Supreme Ct.), 30 N. Y. St. Rep. 315. The court may base the allowance upon the amount both of the recovery and of the coun- terclaim disallowed. Woonsocket Rub- ber Co. v. Rubber Clothing Co., 62 How. Pr. (N. Y. Supreme Ct.) 180. But see Devlin v. New York, 15 Abb. Pr. N. S. (N. Y. C. PI.) 31, where it was held that this could not be done if the counterclaim was defeated upon the same evidence as was necessary to sustain a recovery. The fact that at tne trial defendant offers to admit lia- bility should not deprive plaintiff of his additional allowance if otherwise proper. Austin v. Hartwig, 49 N. Y. Super. Ct. 256. 2. Williams v. Western Union Tel. Co., 61 How. Pr. (N. Y. Super. Ct.) 305, i Civ. Pro. Rep. (N. Y.) 294. The words "subject-matter involved" are not used in the same or a kindred sense with "recovery" or "claim;" they refer to those cases in which the sub- ject-matter involved in the action has a material existence. Devlin v. New York, 15 Abb. Pr. N. S. (N. Y. C. PI.) 31. 3. Devlin v. New York, 15 Abb. Pr. N. S. (N. Y. C. PI.) 31. Where plaintiff sought the destruction and removal of dock property, in part as a public nui- sance and in part as a purpresture, held, that the value of the property was the subject-matter involved. Peo- ple v. New York, etc., Ferry Co., 7 Hun (N. Y.) 113. So, where plaintiff sought to have certain deeds of land declared mortgaged, a successful de- fendant was granted an allowance based upon the whole value of the property covered. Burke v. Candee, 63 Barb. (N. Y.) 552 ; Coleman v. Chauncey, 7 Robt. (N. Y.) 578. The primary relief sought, and not relief incidentally claimed, determines the subject-matter of the action. Gray v. Robjohn, i Bosw. (N. Y.) 618 ; Smith v. St. Philip's Church, 107 N. Y. 610. In partition, the value of the whole property in question is the subject- matter involved. Doremus v. Crosby, 66 Hun (N. Y.) 125. 4. Hagenbuckle v. Schultz, 69 Hun (N. Y.) 183 ; Remington Paper Co. v. O'Dougherty, 18 N. Y. Wkly. Dig. 190 ; Ogdensburg v. Vermont, 63 N. Y. 176 ; Sickles v. Richardson, 14 Hun (N. Y.) no; Williams v. Western Union Tel. Co., 61 How. Pr. (N. Y. Super. Ct.) 305; Mingay v. Holly Mfg. Co., 99 N. Y. 270. Counsel's Stipulation. Counsel may, by stipulation, fix the amount involved in the controversy. Board of Comrs. of Pilots v. Spofford, 47 How. Pr. (N. Y. Supreme Ct.) 479. 233 ADDRESS. I. IN CHANCERY PRACTICE, 234. II. UNDER CODE PRACTICE, 236. I. IN CHANCERY PRACTICE. In chancery practice the address is that technical part of a bill which contains the appropriate de- scription of the court. 1 Form of Address of Bill. In England the bill, under the old chan- cery practice, was addressed to the person or persons who had the actual custody of the great seal at the time the bill was filed. 2 As the address of the bill determined who was to hear the case, it was a subject of more importance in the early days of chancery practice than now, when the jurisdiction of chancery courts is de- fined by statute. 3 1. Story on Eq. PI. 26. That part of a bill which contains the names and description of the persons exhibiting the bill, commonly called in the bill by the title of "your orators and oratrixes," is what is technically known as the "introduction." Story on Eq. PI. 26. This article treats only the subject of " Address " proper, and so much of the subject of "Introduction" as deals with the place of abode of the parties. 2. Daniell on Ch. PI. & Pr., vol. I, p. 358. But if the seals were in the queen's own hand the bill was ad- dressed to her. The following is the form given by Daniell: "To the Queen's Most Excellent Majesty in her High Court of Chancery." Petition. A petition in chancery was addressed to the Lord Chancellor or to the Master of the Rolls. Daniell on Ch. PI. & Pr., vol. 2, 1604. Form used in U. 8. Courts. "Every bill in the introductory part thereof shall contain the names, places of abode, and citizenship of all the par- ties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as fol- lows : "To the Judges of the Circuit Court of the U. S. for the district of : A. B. , of and a citizen of brings this his bill and a citizen of the state of against C. D., of the state of , and thereupon your orator complains and says that." 20 Eq. Rules Sup. Ct. U. S. New York. The form under the old chancery practice in New York was : "To the Honorable James Kent, Chancellor of the State of New York." Blake's Chan. Pr. 27. Tennessee. The following form is used in Tennessee: "To the Honor- able John P. Smith, Chancellor of the First Chancery Division, holding the Chancery Court at Dandridge." Gib- son's Suits in Chancery, 186. The Bill is addressed to the Officer, not to the man ; therefore his name may be omitted entirely and only his official designation as "chancellor" given. Gibson's Suits in Chancery, 186. 3. Chancellor a Party. When the lord chancellor was a party the bill was addressed to the queen herself. Daniell on Ch. PI. & Pr., vol i, 358. But the queen did not hear the case herself, but always referred it to some judges. The master of the rolls and one of the chief justices sat to decide a case wherein the lord chancellor was a party. Lord Keeper v. Wyld, i Vern 139. It seems from a note in Daniell on 234 In Chancery Practice. ADDRESS. In Chancery Practice Address of Complainants. The residence or abode of the complain- ant should be stated in a chancery bill. 1 Where a bill is filed on behalf of an infant or person of unsound mind the place of abode need not be stated, but the abode of the next friend should be set out. 2 Eemedy for Failure. There is some doubt as to what is the remedy for a failure to state the address of the complainant in a bill. Some authorities allow a demurrer, while others establish the practice to be a motion for security for costs. 3 Ch. PI. & Pr., vol. i, 358, that there is a record in the English Tower Records of a case where the master of the rolls addressed a bill to the Bishop of Bath and Wells. 1. " It appears to be laid down in all the books upon chancery pleading that the residence or abode of the complainant should be stated in the bill, though by the practice in this state a particular description of hrs calling or business does not appear to be necessary. The object of setting forth the residence of the complainant is stated to be that the court and the defendant in the suit may know where to resort to compel obedience to any order or process of the court, and par- ticularly for the payment of any costs which may be awarded against such complainant, or to punish him for any improper conduct in the course of the suit." Per the Chancellor in Howe v. Harvey, 8 Paige (N. Y.), 74 ; Griffith v. Ricketts, 5 Hare 195; Sibbering v. Earl of Balcarras, I De G. & S. 683 ; Al- bretcht v. Sussmann, 2 Ves. & B. 323 ; Mayer v. Tyson, i Bland (Md.) 559; I Fow. Ex. Prac. 26. 2. Daniell on Ch. PI. & Pr., vol. I, 360. Nor is it necessary to set out the ad- dress of a married woman, but the ad- dress of the next friend should be stated. The address of a peer or of a corporation need not be stated in the bill. Daniell on Ch. PI. & Pr., vol. 1,360. 3. " It seems that a demurrer will lie to a bill which does not state the place of abode of the plaintiff ; and that if the bill describes the plaintiff as resid- ing at a wrong place, the fact may be taken advantage of by plea ; though a defendant cannot put in such a plea, after a demurrer upon the same ground has been overruled, without leave of court. The modern practice, however, in such cases is not to demur or plead to the bill, but to apply by special mo- tion or summons, on notice to the plain- tiff, that he may give security for costs and that in the meantime proceedings in the suit may be stayed. Thus in Simpson v. Burton (i Beav. 556) Lord Langdale, M.R., said: 'There can be no doubt that it is the duty of a plaintiff to state his place of residence truly and accurately at the time he files his bill ; and if for the purpose of avoiding access to him he wilfully misrepresents his residence, he will be ordered to give security for costs. I do not think the rule extends to a case where he has done so inno- cently and from mere error.' It is to be observed that in this case all the plaintiffs were incorrectly described in the bill ; but there does not appear to be any decision upon the point where there have been several plaintiffs, one or more of whom are correctly de- scribed and the rest not so. It is pre- sumed, however, from analogy to the practice-where there are several plain- tiffs, one only of whom is resident abroad, that the court would not, in such case, require those plaintiffs who are not properly described to give se- curity." Daniell on Ch. PL & Pr., vol. i, 358. In Howe v. Harvey, 8 Paige (N. Y.) 73, it is doubted whether a demurrer lies for a failure to state the complain- ant's residence. In Winnipisiogee Lake Co. v. Wors- ter, 29 N. H. 433, it was held that it was optional to use either demurrer or plea in the nature of plea in abate- ment. In that case the description of the abode of complainant was "Mere- dith, in the county of Belknap." It was held defective. In Sheridan v. Cameron, 65 Mich. 680, it was held that the rule which re- quires the prayer for process to iden- tify the parties would not make a bill fatally defective for the want of it if they were otherwise identified. 235 Under Code Practice. ADDRESS. Under Code Practice. II. UNDEB CODE PBACTICE. New York code. The Code of New York requires that the summons and the notice of appearance shall contain the addresses of the attorneys. 1 If the summons omits the address it has been held to be fatally defective, as the Code is mandatory with reference to what the summons shall contain.* Notice of Motion. The written address of a notice of motion to the party or attorney on whom it should be served is a material part of the notice. 3 Compelling Attorney to Disclose Address. The court may, in a proper case, make an order requiring the attorney for the plaintiff to furnish the defendant with the plaintiff's residence and address. 4 1. N. Y. Code Civ. Proc. 421, 417. 2. Osborn v. McCloskey, 55 How. Pr. (N. Y. Supreme Ct.) 345. But see Wiggins v. Richmond, 58 How. Pr. (N. Y. Supreme Ct.) 376, where it was held that the omission to state the ad- dress was not a jurisdictional defect. An amended demurrer was attempt- ed to be served by defendant's attor- ney from Yonkers, N. Y., while the attorney's address was "Stewart Building," New York City. Held, that it was irregularly and improper- ly served. Gray -v. Smith, 10 N. Y. St. Rep. 866. Address Printed. A summons upon which the name and address of the plaintiff's attorney is printed, instead of his written signature, is "sub- scribed" by him within the meaning of 417 of the Code of Civil Pro- cedure. New York v. Eisler, 10 Daly 396 ; Barnard v. Heydrick, 49 Barb. 62 ; Mutual Life Co. v. Ross, 10 Abb. Pr. (N. Y. Supreme Ct.) 260 note. Contra. Farmers' L. & T. Co. v. Dick- son, 17 How. Pr. (N. Y. Supreme Ct.) 477- Foreclosure of a Mortgage. In an action to foreclose a mortgage where the summons was accompanied by a notice of no personal claim, which was served upon the defendant H., whose name appeared in the notice, but not in the summons ; the sum- mons also failed to specify the office, post-office address, or street number of the plaintiff's attorney, and no reference thereto was made in the notice. Held, that the words of 417 of the Code of Civil Procedure were not mandatory, and that the omission was not a jurisdictional defect, but could be cured by amendment. Wig- gins v. Richmond, 58 How. Pr. (N. Y. Supreme Ct.) 376. 3. "The written address or direc- tion of a notice of motion to the party or attorney on whom it should be served is a material part of the notice ; for service on one to whom the notice is not addressed may prove ineffectual, especially if it be ad- dressed to others. An error in the address does not vitiate if the notice duly reaches the one intended and the error does not mislead." Abbott's New Prac. & Forms, vol. i, 158. 4. "The order requiring the disclo- sure of the residence and address of the plaintiff was made in the reason- able exercise of the discretion and power of the court. The moving affidavit of the defendant disclosed facts tending to show that the action was being prosecuted without the knowledge or desire of the plaintiff, and in that view alone it was proper enough to afford an opportunity for his examination. Besides this, it was the right of the defendant to examine the plaintiff before trial, and to that end to be informed of his where- abouts." Per Dykman, J., in Corbett v. Gibson, 18 Hun (N. Y.) 49. In Corbett v. De Comeau, 45 N. Y. Superior Ct. 637, an order was made for the disclosure of plaintiff's ad- dress, where the affidavit stated that the defendant wanted to examine , plaintiff, and show whether he was a willing party to the action ; that he was insane ; that the allegations of libel in the complaint were true ; to secure his attendance on the trial ; and to obtain security for costs. In the 99 plaintiffs v. Vanderbilt, i Abb. Pr. (N. Y.) 193, where 99 plain- tiffs sued the defendant, an order was made compelling the attorney to dis- close the address of the plaintiffs. The court said : " The defendant can 236 Under Code Practice. ADDRESS. Under Code Practice. An attorney cannot be compelled to disclose his client's address after the litigation has finally terminated ; for the only penalty for refusing the information is to stay the client's proceeding or strike out his plea. 1 not always be aware who are his opponents. It may happen, and in this case it does, that he may be attacked by a number about whom he knows nothing." Consult also the following common-law cases : Johnson v. Birley, 5 B. & A. 540 ; Worten v. Smith, 6 J. B. Moore 1101 ; McKiernan v. Patrick, 4 How. (Miss.) 333; West v. Houston, 3 Harr. (Del.) 15. "The power of the court to require a party to disclose his residence is the subject of some difference of opinion. It is clear that the court may require either party to disclose his address as a condition of being allowed to pro- ceed actively in the cause, and this will usually be effectual with a plain- tiff, or a defendant seeking affirmative relief. In an unreported case, Law- rence, j., denied a motion to compel the attorney to give his client's ad- dress because the attorney made affidavit that he was unable to do so, his client being absent ; but neverthe- less stayed all proceedings on the client's part until he should return to the city and submit to examination under the order which it was sought to serve on him." Abbott's New Prac. & Forms, vol. 2, 500, citing Olm- stead v. Wehle, 18 N. Y. Wkly. Dig. 486. Attorney Charged with Costs. It is the duty of an attorney, as an officer of the court, to furnish all informa- tion required by the court in order to carry out its process. Where an attor- ney, in answer to an order directing him to state the whereabouts of the plaintiff, so that an injunction could be served upon him, made a statement of the residence of the plaintiff which was misleading, held, that the attor- ney was properly charged with all the expenses of the reference to ascertain the plaintiff's whereabouts, on the ground of misconduct. Bauer v. Betz, I How. Pr. N. S. (N. Y. Supreme Ct.) 344. In this case the court said: "It cannot be questioned that the service of the injunction upon the plaintiff was very important to the protection of the defendant's interests, and it was just as much his duty to aid in the admin- istration of justice in that respect as it was to protect his client's interests. As an officer of the court he was bound to deal with it in all respects without reserve, and to obey its orders implic- itly unless appealed from and reversed on appeal. If he had stated in his affidavit that his client had resided and he believed continued to reside at the place named in this city, but had been sojourning in Jersey City under an as- sumed name, and that he had parted from him on the twenty-fifth of Jan- uary, and then stated what he believed as to his intentions, his conduct would have appeared upon the record in ref- erence to the subject unimpeachable. He suppressed, however, these im- portant facts, and it would seem with the intention of screening his client. In his zeal he may have supposed that this was his duty professionally, but it was a great mistake if he entertained any such view, and the result is, the imposition of costs upon himself and his client in the proceeding which a candid and honorable revelation would not only have avoided but which would have rebounded to his credit as an officer of the court." Ground of Authority. The power of the court to compel an attorney to disclose his client's address rests on the same ground as that to disclose his authority. Friedberg v. Bates, 3 N. Y. Month. Law Bull. 6. As to the right to compel an attor- ney to disclose his authority, see New York v. Purdy, 36 Barb. (N. Y.) 266. 1. Walton v. Fairchild (City Ct.), 24 N. Y. St. Rep. 314. 237 ADJOURNMENTS. By WM. P. AIKEN. I. DEFINITION, 238. n. COUBTS OF RECOBD, 239. 1. Power to Adjourn, 239. 2. Length of Adjournment, 239. 3. Who May Order Adjournment, 240. 4. Place of Adjournment, 243. 5. Consequences of Adjournment, 243. III. JUSTICES COUBTS, 247. IV. REFEBEES AND ABBITBATOBS, 247. V. QUASI JUDICIAL OFFICEBS, 248. I. DEFINITION. An adjournment is the suspension of the sessions of a judicial tribunal or other official body until a time certain, or indefinitely where the adjournment is without day. 1 1. An adjournment is a putting off until another time and place. Whart. Law Lexicon ; People v. Martin, 5 N. Y. 26 ; Wilson v. Lott, 5 Fla. 303. A continuation of a previous term of court. Van Dyke v. State, 22 Ala. 60. A continuance of a session from one day to another. Tramnell v. Bradley, 37 Ark. 379. Adjournment and Continuance Distin- guished. Adjournment, as compre- hended in this article, must be distin- guished from continuance, which may be denned as the adjournment of a case as distinguished from the tribunal itself, and is the suspension of a pro- ceeding before the tribunal until a sub- sequent time. The treatment of this subject will be found in the article CONTINUANCES. Additional Term, Special Term, and Ad- journed Term. In Harris v. Gest, 4 Ohio St. 473, Herman, C. J., distin- guishes an adjourned term from the "additional term " provided for by section 5 of the Ohio Act of January 31, 1854(52 Ohio L. 10). In the case of the former the sitting after the ad- journment is a prolongation of the regular term, and in contemplation of law there is but one term ; but the lat- ter is a distinct term and not a pro- longation of the regular term. So special terms provided for by many of the statutes must be distinguished from an adjourned term as it is ap- parent that the same difference exists between them and the adjourned term as between the additional term of the Ohio statute and the adjourned term. "Adjourn." In La Farge v. Van Wagenen, 14 How. Pr. (N. Y. Supreme Ct.) 58, Birdseye, J., said: "It is true that the primary signification of the term ' adjourn ' is to put off or to defer to another day specified ; but it has acquired also the meaning of sus- pending business for a time defer- ring, delaying. Probably, without some limitation, it would, when used with reference to a sale like the pres- ent, or any judicial proceeding, prop- erly include the fixing of the time to which the postponement was made." Adjourn Held Equivalent to Postpone. In a New Jersey statute prescribing the length of time for which a justice may grant adjournments, the term "ad- journ " was held equivalent to " post- pone," the court by Kirkpatrick, C. J., saying : " If there could be any doubt upon the import of the term ' ad- 238 Courts of Record. AD JO URNMENTS. Length of Adjournment. II. COTTBTS OF RECOBD. 1. Power to Adjourn. Inherent J-ower. As power to adjourn is essential to the completion of business, it is an inherent attribute of judicial tribunals. 1 Statutes dealing with the subject of adjournments will be con- strued as confirmatory of the common law where possible ; that is, as neither abridging nor extending the inherent power of the courts. 2 2. Length of Adjournment. It has been intimated that common- law adjournments were only from day to day; 3 but as the common time fixed by law, the record must show the reason for the adjournment." In Casily v. State, 32 Ind. 63, it was held that this provision had reference only to final adjournments until the next regular term before the lapse of the time allowed for that term of the court, and that the circuit court had full power to adjourn, before the lapse of time allowed by law for its term, to a day beyond such time, and before the next regular term, and that it was not required to put the reason for such adjournment upon record. Dis- approving of the decisions in Morgan f. State, 12 Ind. 448 ; Slaughter v. Gregory, 16 Ind. 250. Frazier, C.J., in delivering the opinion of the court, said : " When it adjourns finally until the next regular term before the lapse of time allowed for its term, . . . in that case and only in that case it must, if the business be unfinished, put the reason for such adjournment on record. . . . The statute if held directory only will accomplish every good purpose which the legislature had in view, and a vast amount of mischief will be prevented." Casily v. State, 32 Ind. 62, was approved in Cass v. Krimbill, 39 Ind. 358 ; and in Harper v. State, 42 Ind. 410, where it is said : " The case of Casily v. State, 32 Ind. 62, related to an order of ad- journment to a day in vacation, and not to an adjournment to the next regular term, and the ruling in that case was, in effect, the overruling of the cases of Shiel v. Maffett 17 Ind. 316; Slaughter v. Gregory, 16 Ind. 250; and any other cases which hold that in the order of the court adjourning to a day in vacation, the reason for the adjournment must be stated, and we regard them as overruled." 2. People v. Sullivan, 115 N. Y. 185 ; Mechanics' Bank v. Withers, 6 Wheat. (U. S.) 106 ; Smith v. Smith, 17 Ind. 75 ; Seymour v. State, 15 Ind. 288. 3. Griffin v. Spalding, 6 Vt. 60 ; Haw- ley v. Parrott, 10 Conn. 486. journ,' it is explained in the subse- quent clause of the section where the word postpone is used to signify pre- cisely the same thing. The definition of this word according to Johnson is to put off, to delay. It (the statute) will read according to this definition : The justice may put off, may delay the trial for any time not exceeding fifteen days.' 1. Mechanics' Bank v. Withers, 6 Wheat. (U. S.) 106 ; People v. Sulli- van, 115 N. Y. 185 ; Harris v. Gest, 4 Ohio St. 469 ; Cook v. Skelton, 20 111. no; 71 Am. Dec. 250; Hawley v. Parrott, 10 Conn. 488 ; Seymour v. State, 15 Ind. 288 ; Read v. State, 26 Ga. 275 ; Revel v. State, 26 Ga. 275 ; People -v. Northrup, 50 Barb. (N. Y.) 147 ; Stirling v. Wagner (Wyoming, 1892), 31 Pac. Rep. 1032 ; Robinson v. State, 22 Tex. App.135 ; In re Hunter's Estate, 84 Iowa 388 ; Murray v. State, (Ga., 1893), 17 S. E. Rep. 99. In Stirling v. Wagner (Wyoming, 1892), 31 Pac. Rep. 1040, it is said : " The statute being silent, the inher- ent power of the court to adjourn to a distant day, without interference with its duties elsewhere, is unfettered, as nothing seems clearer than that, inde- pendent of statutory warrant or inter- ference, courts of general jurisdiction have authority to hold adjourned terms." In re Hunter's Estate, 84 Iowa 388, it is said: "Adjournments of the business of a term of court from day to day and from time to time, as thv necessities of the situation seem to de- mand, is essential to the conduct of business and has the sanction of uni- versal usage. Such a right is not questioned." No Keason need be Assigned for the Adjournment The Indiana Statute. It was provided by the Indiana statute of 1855 (Rev. St. Indiana 1881, 1332) " that if any judge of a circuit court shall adjourn the court before having gone through with the business pend- ing, and before the expiration of the '39 Courts of Record. AD JO URNMENTS. Who may Order. law considered the whole term but one day, 1 the existence of any power to adjourn is held to imply discretion as to the extent of the adjournment within the limits expressly set by statute to the court's term. 2 But courts do not look with favor upon Lr<^ adjournments. 3 3. Who May Order the Adjournment. Authority to order an ad- journment is a judicial power, and cannot be delegated to a minis- terial officer. 4 As courts derive their power to convene from con- 1. Barrett v. State, I Wis. 180 ; People v. Sullivan, 115 N. Y. 185 ; Havvley v. Parrott, 10 Conn. 486 ; Cutter v. Wadsworth, 7 Conn. 6. The proposition is undisputed. See TERM. But the true time when a judgment has been rendered or other act done may always be shown where it is material. Barrett v. State, r Wis. 175 ; Prescott v. Wright, 6 Mass. 20 ; Com. -v. Gee, 6 Cush. (Mass.) 174 ; Hawley v. Parrott, 10 Conn. 486; Cut- ter v. Wadsworth, 7 Conn. 6. "Term" and "Session." There is a conflict in the cases as to whether the word "term" may mean "session." Pitman v. U. S., 45 Fed. Rep. 82, con- strues a statute providing that an absent judge may adjourn the com- mencement of any "regular, special, or adjourned term " by written order to include the daily sessions of either three terms. This construction is also adopted in Stefani v. State, 124 Ind. 3, where the word "session" is held an equivalent of "term." Lipari v. State, 19 Tex. App. 433, holds the contrary, the court saying: "A session signifies the time during the term in which the court sits for the transac- tion of business, and the session com- mences when the court convenes for the term and continues until final ad- journment either before or at the expiration of the term. The term of court is the time prescribed by law during which it may be in session. The session of the court is its sitting." See TERM. 2. Barrett v. State, i Wis. 180; Cook v. Shelton, 20 111., in ; 71 Am. Dec. 250 ; Stirling v. Wagner (Wyoming, 1892), 31 Pac. Rep. 1041; In re Hunter's Estate, 84 Iowa 388 ; Robinson v. State, 22 Tex. App. 135 ; Revel v. State, 26 Ga. 276 ; Seymour v. State, 15 Ind. 288; Mechanics' Bank v. With- ers, 6 Wheat. (U. S.) 106, where the court says : "There being nothing in any act of Congress which prevented the courts of the districts from exer- cising a power common to all courts, that of adjourning to a distant day, the adjournment on the i6th of May to the fourth Monday of June would be a continuance of the same term unless a special act of Congress, ex- pressly enabling the court of the districts to kold adjourned sessions, may be supposed to vary the law of the case. This act, affirming a pre-existing power, ought not to be construed to vary the continuance of that power unless words are implied which manifest such intention." Adjournment from Day to Day Sun- day. As Sunday is not a judicial day, an adjournment from Saturday to Monday does not violate a statute re- quiring adjournments to be made from " day to day." State v. Howard, 82 N. Car. 623. See also State v. King. 23 Neb. 540; Thayer v. Felt, 4 Pick. (Mass.) 354 ; State v. Howard, 82 N. Car. 623; and see DIES NON. Louisiana Statute Limiting the Time of Adjournment. In Willis v. Elam, 28 La. Ann. 857, it was held that the Louisiana statute limiting the time of adjournments to one week only ap- plies to one adjournment and does not prohibit the judge from adjourning his court more than once at the same term, although the aggregate of the adjournments may be more than one week. 3. Cook v. Shelton, 20 111. no ; 71 Am. Dec. 250; Harris v. Gest, 4 Ohio St. 469. In the last case the appellate court preferred to consider the term in question an "additional term" rather than an "adjourned term." If it had been held an adjourned term, it would have made the adjournment a very long one. See, however, Fan- non v. Plummer, 30 Mo. App. 25. 4. Wight v. Wallbaum, 39 111. 555; People v. Clews, 4 Abb. N. Cas. (N. Y. Ct. Sess.) 256. It is held also, in the latter case, that, as power to ad- journ a court implies a court to ad- journ, no absent judge can, without express statutory authority, adjourn a court while absent. 240 Courts of Record. AD JO URNMENTS. Who may Order. stitution or statute, a court which does not meet at the time and place prescribed thereby has no power to convene at all. 1 If the court attempts to begin its session at a time or place other than thus prescribed, the whole proceedings at that term will be void, since they do not take place at the term authorized by statute.'-* Statutory Provisions Statutes authorizing the sheriff or clerk, or a single judge where a legal quorum is absent, to adjourn the com- mencement of the term, have been generally adopted. They usually contain a provision that an absent judge may adjourn the commencement of the term, or a subsequent session, by a written or other statutory order to the clerk or some other officer. 3 1. People v. Bradwell, 2 Cow. (N. Y.) 445; Northrup v. People, 37 N. Y. 203; Brumley v. State, 20 Ark. 78 ; Dunn v. State, 2 Ark. 229 ; Ex p. Osborn, 24 Ark. 479; State v. Roberts, 8 Nev. 239; Ex p. Jones, 27 Ark. 349; People v. Sullivan, 115 N. Y. 185. "The term is appointed to be held under the authority of a statute, and an adjourned term of the court at which cases may be noticed and jurors summoned as if to a new and regular term is of the same nature. In such a case, in the absence of any statute, the failure of any judge to appear upon the day may well be regarded as preventing the convening of a legal court, and as no legal court convened and commenced its term on the day ap- pointed by law, there would of course be no power, in the absence of a statute, in the court to convene the next day any more than the next month or the next year. In such a case there would be no court to con- vene." People v. Sullivan, 115 N. Y. 185- No Adjournment to Await a Quorum. In People v. Bradwell, 2 Cow. (N. Y.) 445, it was held that a court of over and terminer could not be adjourned by a circuit judge, or otherwise, by rea- son that a number of the county judges sufficient to make a quorum were not present at the day appointed for holding it ; and where a quorum did not appear until the third day of the circuit and then opened the oyer and terminer and convicted a criminal, it was held that the proceedings were coram non judice. 2. People v. Bradwell, 2 Cow. (N. Y.)445; People v. Sullivan, 115 N. Y. 185. 3. New York Code Civ. Pro. 35, 36, 41; Pennsylvania Bri. Pur. Dig. p. 1360 ; Massachusetts Rev. St. C. 153, 25, 26, 27; New Hampshire Rev. St. c. 207, ji 2, 3,4; MaineRev. St., c. 77, 48, 50, 72, 77; c. 70, 2; c. 67, 2; Connecticut Rev. St. 441, 727, 750, 790, 791, 802, 803, 820; Alabama Code, 660, 662, 663, 664; Georgia Code, SS 3239, 324. 3242, 3243, 3244, 4113; Michigan Gen. St. (How.) 6407, 6408, 6461; Minnesota Rev. St., c. 64, 9, 15; c. 63, S 7, 8, 9; Mississippi Code, g 1400, 2263, 2264; Ohio Rev. St. 412, 4969; Illinois Rev. St. c. 37, 4, 5, 51, 54, 56; California Code Civ. Pro. 46, 48, 74, 135, 139, 140, 617 ; Virginia Code, j 3111, 3122, 3123, 3124 ; Wisconsin Ann. St. 2404, 2427, 2449, 2572, 2573, 4049 ; Tennessee Code, 4863, 4969, 4991, 5227, 5260. When Commencement is Adjourned the Day Adjourned to is the "First Day of the Term." Where, before the day appointed for the beginning of the term, the commencement of the term is postponed or adjourned to a future day, the date to which it is adjourned becomes the first day of the term ; that is to say, that anything appointed to be done upon the first day of the term may be done upon the day to which the commencement of the term is adjourned, i. e., the first day of the adjourned term. Thus, an order that papers shall be filed on the first day of the term is sufficiently fulfilled if the papers are filed on the day to which the commence- ment of the term is adjourned. Wilson v. Lott, 5 Fla. 302. In that case the court by Thompson, ]., said: "There is an obvious distinction be- tween the adjournment of the court on the first or any subsequent day of the term, and the adjournment of the term, in anticipation of the ap- pointed time, to another day; in the first place, the term has actually com- menced, and the effect of the adjourn- i Encyc. PI. & Pr. 16. 241 Courts of Becord. AD JO URNMENTS. Who may Order. Liberally Construed. These statutes have received a liberal con- struction by the courts, and provisions for entering, filing, and publishing such orders have been generally held directory, unless a party is prejudiced by the failure to obey them. 1 ment is but a prolongation of the term ; in the latter case, the term being postponed by adjournment before it commences, the return day thereof is also adjourned, and it takes its begin- ning from the time to which it is ad- journed." 1. Provisions Held Directory. Where a clerk received the adjournment or- der, but failed to formally adjourn the court and left the order unrecorded, unpublished, and unposted, as the statute directed, these provisions were held to be directory and the adjourn- ment nevertheless valid. Wise v. State, 34 Ga. 348. Where a clerk ad- journed an entire week instead of from " day to day," as the Code required, in the absence of the judge, the pro- vision was held directory and the ad- journment legal. May -v. People, 8 Colo. 210. For construction of requirements for calling special term as directory, see Harman v. Copenhagen, 89 Va. 836. A Substantial Compliance Sufficient. Where statutes grant power to adjourn the regular term, if at its expiration business is unfinished, the court may adjourn before the expiration of the term if it can be seen that business will be then unfinished. Walker v. State, 102 Ind. 502; overruling Morgan v. State, 12 Ind 448, ; and compare Wright v. State, 5 Ind. 290; 61 Am. Dec. 90. Notice of Adjournment. Reasonable notice of an adjournment must always be given, whether the statutes require it or not. Grable v. State, 2 Greene (Iowa) 559 ; Archer v. Ross, 3 111. 303. But a two days' notice in a news- paper answers the requirement of a statute requiring publication, but not specifying its duration. Clarke County v. State, 61 Ind. 75. Where the statute required an ad- journing order to specify how public notice should be given, and the order actually entered by the clerk failed to so specify, although he gave public no- tice as the law required, it was held that the failure of the original order to conform to the law did not invali- date the adjournment, and that a cor- rect nunc pro tune order might be en- tered. Conrad v. Johnson, 20 Ind. 421 ; Cordell v. State, 22 Ind. i ; Wood v. Franklin, 97 Ind. 117. W r here a statute provided that if the judge was absent the sheriff should adjourn by proclamation and by post- ing notice in the court-house, and the judge while present directed an order to be entered that if no judge \vas present at subsequent hour named the sheriff should adjourn the court, it was held that as the adjournment was made by the order of the judge, no proclamation or posting was required. Bressler v. People, 117 111. 425 ; and compare People v. Central Bank, 53 Barb. (N. Y.) 416 ; State v. McGuire, 53 Iowa 165, which are to the effect that if the entry of a customary order of adjournment be required at all, it may be nunc pro tune. But where neither the statutory order of the judge was entered of rec- ord, nor the adjournment proclaimed by the sheriff, the adjourned term was held irregular, as no public notice had been given. Stovall v. Emerson, 20 Mo. App. 322. Statutory Orders of Adjournment by Judges in Court are similarly construed. An order entered three days before the expiration of the term, reciting its inability to complete business at regu- lar term, declaring that an "ad- journed term is hereby ordered and appointed " fora certain date, is, when followed by another order of adjourn- ment on the last day of term, reciting that statutory publication of notice of adjournment had been complied with, a sufficient compliance with a statute permitting adjourned term to be held if at the expiration of the regular term business was unfinished. Washer v. Allensville, etc., Turnpike Co., 81 Ind. 78. And where "special adjourned terms" of a court might be held by entering an order to that effect, a sim- ple adjourning order to a distant day, without specifying that a " special ad- journed term was to be held," was considered sufficient. Daviesz/. State, 39 Ark. 448. An entry in the minutes, reciting that on Saturday the court adjourned for the term, and directing the clerk to 242 Counts of Record. AD JO URNMENTS. The Consequence of. 4. Place of Adjournment. Where the statute names the specific place for holding court, it cannot be legally held elsewhere, and consequently cannot be adjourned elsewhere. 2 5. The Consequence of Adjournment. Distinction Between Adjournment Sine Die and Adjournment to a Day Certain. An adjournment is either with- out day or to a day certain. The distinction is vital. An adjourn- ment without day ends the power of the court over the business and record of the term. 3 The adjournment of the term to a day enter in the journal an adjournment from day to day without fixing a date for reconvention, was held inconsis- tent with itself, and a final adjourn- ment. Ex p. Lilly, 7 S. Car. 372. Where the entry was, " Ordered, that all cases ready for trial having been disposed of, the daily sessions of the court will be dispensed with, the term of the court not being closed," it was held to keep the term open by daily adjournments of the clerk until the judge saw fit to return and reopen court. De Leon v. Barrett, 22 S. Car. 412. Sheriff Exceeding his Authority. Where the sheriff was to adjourn from day to day for a week, if the judge was absent, and at the expira- tion of a week, the term sine die, it was held that the judge who attended within the week may vacate an order of the sheriff adjourning the term sine die before the last day of the week had arrived. Thomas v. Fogarty, 19 Cal. 644. Compare People v. Sanchez, 24 Cal. 18 ; Garza v. State, 12 Tex. App. 261. Telegraphic Order. Where the stat- ute required a written order, and the judge telegraphed the clerk, " I have made and sent you a written order ad- journing court until to-morrow morn- ing nine o'clock ; adjourn it accord- ingly," and the clerk adjourned before written order was received, it was held a substantial compliance with the statute. State z/. Holmes, 56 Iowa 588 ; 41 Am Rep. 121. Georgia. But in Hoye v. State, 39 Ga. 723, it was held that a provision that the commencement of the term should not be adjourned by the court in vacation, except for some unavoid- able cause, was mandatory, and that an adjournment without sufficient cause would render the term irregu- lar and the proceedings thereat void unless the irregularity be waived by the parties. In Osgood v. State, 63 Ga. 791, it was held that where the regular time for holding two courts in the same cir- cuit conflict, one being appointed for Monday and the other for Tuesday of the same week, the judge may ad- journ the latter to another date ; such conflict being an " unavoidable cause " under the Georgia Code. In Allen v. State, 74 Ga. 773, it was held that a tornado doing great dam- age was such an "unavoidable cause " within the statute as to authorize the judge to order an adjournment to the commencement of the term ; and in that case it was further held that the signature of the judge to the adjourn- ment order was not necessary. Citing Cogswell v. Schley, 50 Ga. 481. And see Wise -v. State, 34 Ga. 348, digested supra this note. The clerk of the superior court or his deputy cannot adjourn an ad- journed term of the court from day to day for two days, in the absence of the judge, where such absence has not ben caused by unavoidable accident. Norrie v. McCullough, 74 Ga. 602. 1. Bennett v. Cooper, 57 Barb. (N. Y.) 642 ; Northrup v. People, 37 N. Y. 203. But where the statute names a town as a place for holding the court- it may be reasonably adjourned any. where within the limits of that town, Litchfield Bank v. Church, 29 Conn. 137- 2. Dryden v. Wyllis, 54 Iowa 668 ; Shaw v. McGregor, 8 Cal. 521 ; Earls v. Earls, 27 Kan. 538. Term Cannot be Reopened after Final Adjournment. Consequently a term once finally adjourned cannot be re- opened by an order made in vacation. International, etc., R. Co. v. Smith, 62 Tex. 185 ; Johnson v. Pittsburgh R. Co., 47 Ohio St. 318 ; Newman v. Newton, 14 Fed. Rep. 634 ; Bank of U. S. v. Moss, 6 How. (U. S.) 31 ; Becker v. Sauter, 89 111. 596 ; and see note to Jacques v. Bridgeport Horse R. Co., 16 Am. Law' Reg. N. S. 660; Carpentier v. Hart, 5 Cal. 406. 243 Courts of Secord. AD JO URNMENTS. The Consequence of. certain leaves it intact. As no court can create a new term to it- self without statutory authority, all adjournments to a future day certain are but prolongations of the terms adjourned. 1 1. Mechanics' Bank v. Withers, 6 Wheat. (U. S.) 106; Cherry Tp. v. Mar- ion Tp., 96 Pa. St. 528; People v. Cen- tral Bank, 53 Barb. (N. Y.) 416; Stefani v. State, 124 Ind. 3; Com. v. Sessions, 5 Mass. 435; Sawyer v. Bry- son, 10 Kan. 200; Smith v. Smith, 17 Ind. 75; Ulmer v. State, 14 Ind. 52; Harris v. Gest, 4 Ohio St. 469. "In contemplation of law there is but one term." Davis v. Finney, 37 Kan. 65; Springbrook Road, 64 Pa. St. 451; Maynard v. Head, 78 Ga. 190; Ex p. Casey, 18 Fed. Rep. 86; McDonald v. Cash, 45 Mo. App. 66. A court at an adjourned term may cause the proceedings of the regular term to be entered. Knight v. State, 70 Ind. 375; Green v. White, 18 Ind. 3I7- Action on Appeal Brought at an Ad- journed Term. In Connecticut, in the case of Hawley v. Parrott, 10 Conn. 486, it was held that an act might be brought originally in the county court adjourned from a regular term to a distant day. The court said: "So far as we have been able to ascertain, these adjourned terms (as they have been denominated) have been attended by nearly, if not all, the incidents of a statute term. Causes have been car- ried forward to them as from term to term. New juries have been sum- moned and bills of cost taxed in the same manner as though the term had been prescribed by law." But in Leavenworth v. Marshall, 19 Conn. I, it was held that where a statute re- quired an appeal to be brought at the next term of the appellate court, the appeal could not be taken to an ad- journed term of that court. The court cited and relied upon Fellows v. Car- penter, Kirby (Conn.) 364, and distin- guished Hawley v. Parrott, 10 Conn. 486; Brewster v. Shelton, 24. Conn. 144; approved Fellows v. Carpenter, Kirby (Conn.) 364, saying: " And the reason assigned by the court was that the words of the statute granting ap- peals to the next county court had reference to the next stated term, and not to an adjourned term, which was but a continuation of a term;" and distinguished Hawley v. Parrott, 10 Conn. 486, thus : " In a more recent case this court held that, in view of the long practice which had prevailed in this state, an original suit might be brought to an adjourned term of the court ; but the decision was placed entirely upon the ground of such long- continued practice, which could not be disturbed without shaking the foundation of many titles." So in Massachusetts it was held that where an application was to be made at the next term of court, the appli- cation could not be made to an adjournment of the same term. Com. v. Sessions, 5 Mass. 435. Adjourned Term and New Special Term. But care must be taken to distin- guish between an "adjourned term" and a new and distinct term. Statutes permitting courts to order a new and additional or special term, for which a new calendar is prepared and a new panel of jurors is drawn, are held to confer on the court the power to create a distinct term, at which it has no power over the record of the old. People v. Sullivan, 115 N. Y. 185; Saw- yer v. Bryson, 10 Kan. 200. And where the court has power to create such new term, it may, where its char- acter is doubtful, be held such, to dis- courage long adjournments. Harris v. Gest, 4 Ohio St. 469. Statutes frequently provide that courts may create special terms. With- out judicial construction it is impossi- ble in many cases to say whether such statutes merely confirm the court's in- herent power to adjourn its term, or grant it power to create a new one. N. Y. Code Civ. Pro. sees. 34, 280; Conn. R. S. sec. 1617; Ala. Code, sees. 652, 653; Mich. R. S. sees. 6392, 6465, 6627; Iowa Code, sec. 166; 111. R. S. chap. 37, sees. 44, 45, 46, 47, 48, 49; Ga Code, sec. 3245; Ohio R. S. sees. 410, 450: Miss. Code, sees. 630, 912; Minn. R. S. chap. 63, sees. 9, 10; chap. 64, sec. 15; Va. Code, sees. 3060, 3061, 3062, 3106; Wis. An. St. 2428, 2429, 4049; Tenn. Code, sees. 4708, 4709, 4713. Where a court had power by statute to decide all matters at an adjourned session with the "same effect" as it might at regular term, it was held a new term for purposes of ap- pearance, and not a prolongation of regular term. Horton -v. Miller, 38 244 Courts of Record. A DJO URNMENTS. The Consequence of. Existence of Court during Adjournment. As the term continues until final adjournment, the court exists as well during temporary adjournment as in open session. 1 The duration of adjournment matters not. The power of the court for that term is, in some respects, suspended, but not destroyed. The failure of a court to meet on an adjourned day does not therefore make further session illegal or even irregular, 2 as is the case when the court does not meet on the day set by statute for the beginning of the term. 3 It may meet at any time thereafter, but fair notice must be given to all concerned. 4 Power over Eecord of Past Business. Where the business of the ad- journed term must be stated in the order of adjournment, this does not limit the court's power over the record of past business of the term. A judgment previously rendered may be vacated at such adjourned term. 5 ute, rather than an adjourned term : this to discourage long adjournments. But in Fannon v. Plummer, 30 Mo. App. 25, it was held that when a court sitting in session is adjourned to a specified day prior to its next ensu- ing regular term, the sitting thus adjourned is a continuation of the Pa. St. 270; and compare Smith v. Northern Pac. R. Co. (N. Dak., 1892), 53 N. W. Rep. 173. Code Va. sec. 3062 provides that any civil cause may be tried at a special term which might have been tried at regular term. Held, that this authorized the court to act upon the report of a judicial sale, although the statutory period of term adjourned from and not a special two regular terms intervened, and that consent of parties was not neces- sary. Harman v. Copenhagen, 89 Va. 836. On the other hand, a statute providing that "special or adjourned terms may be held " has been de- clared to mean that such special terms are adjourned terms, even although the court, at the time of making the order for the special term, adjourned the regular term sine die. Cole County v. Dallmeyer, 101 Mo. 175. General statutes affecting adjourn- ments apply to special and adjourned terms as well as to regular terms. State v. Harkins, 100 Mo. 666. Com- pare Anonymous, 5 Mass. 197, where "first day of the term" was held to mean regular, not adjourned, term. Where adjournment is made to a statutory adjourned term, compliance with the statute is legal notice to all parties and their attorneys having business before the court, and they cannot plead lack of actual notice. Rawson v. Powell, 36 Ga. 255. Presumption as to whether Special or Adjourned Term. In Harris v. Gest, 4 Ohio St. 469, it is held that where the court has power to create such new term, and the adjournment would be a long one, a term would, where its character is doubtful, be held an additional term under the Ohio stat- or different term. 1. Eastman v. Concord, 64 N. H. 264; People v. Central Bank, 53 Barb. (N. Y.)4i2. 2. People v. Sullivan, 115 N. Y. 185; State v. Bohan, 19 Kan. 29; Lang- horne v. Waller, 76 Va. 213; Union Pac. R. Co. v. Hand, 7 Kan. 380; La- bradie v. Dean, 47 Tex. 100, where the court asserts: "The order of ad- journment of its session from day to day or to a particular hour is a mere announcement of its proposed or in- tended order of transacting the busi- ness to come before it during the term, but certainly the failure of the court to meet at the hour or on the day to which it had adjourned can in no way affect the term or put an end thereto." 3. See supra this title. 4. People v. Sullivan, 115 N. Y. 185. May Meet before the Bay to which it Adjourned. And, conversely, it may meet before the day of adjournment has arrived. A court made an order of adjournment until the 26th of a month. It met on the 22dand vacated the prior order of record, substituting an order for a statutory adjourned term. Held, legal. Cole County v. Dallmeyer, 101 Mo. 175; Bowen v. Stewart, 128 Ind. 508; Wharton v. Sims, 88 Ga. 617. 5. Wharton v. Sims, 88 Ga. 617. 245 Courts of Eecord. AD JO URNMENTS. The Consequence of. Instructions, etc., during Eecess. Instructions may be given to the jury and their verdicts received after adjournment for the night, bills of exceptions and petitions filed during recess, and in general all acts which require the existence, but not the open sitting, of the court may be done until final adjournment. 1 Waiver of Irregularities. It has been said that in civil cases pro- ceeding to trial without objection is a waiver of any irregularity in the adjournment. 2 In a criminal case there is a difference in And where statute confers the right to order adjourned term on account of unfinished business, this does not de- stroy the court's power over the record of the regular term as such adjourned term. It exists unimpaired. Smith v. Smith, 17 Ind. 75. 1. State v. Knight, 19 Iowa 98; Eastman v. Concord, 64 N. H. 264; State v. Bohan, 19 Kan. 29. In Barrett v. State, I Wis. 180, the court said: " The general rule is that the term is to be considered as of one day. These intervals (temporary adjournment), for the purposes aforesaid, cannot suspend the functions of the court altogether. A jury may be out after the court has retired for the night, and yet miscon- duct of a juror during such interval might be punished as for contempt. Appliances to a grand or petit juror during such interval would be con- tempt of the court. If the officer hav- ing charge of the jury during such re- cess or adjournment should desert his post or tamper with the jury, he would be punishable a for contempt. It is heldby some courts that the publication of its day'sproceedingsduringthe even- ing or night may be a contempt of the authority of the court. These conse- quences could not be if the ordinary adjournments from day to day operated a cessation of the functions of the court. A grand jury may continue the session and deliberate, administer oaths, examine witnesses, find bills, etc., during such intervals, which they could not do after an adjournment of the term. Indeed, it was the very ex- istence and vitality of the court on the evening in question which author- ized the jury in this case to delib- erate." Accordingly it was held in the above case that a verdict taken in the court-room after the court had adjourned for the night was valid. See also Shapley v. White, 6 N. H. 172, where a judge's instructions de- livered to jury after the adjournment of the court, and where neither parties nor their attorneys were present, were held not to invalidate the verdict where right to except to such charge was reserved. Dakota Sunday. Section 388 of the Code of Civil Procedure of Dakota Territory provided that while the jury were absent "the court may adjourn from time to time as to the other busi- ness, but it is nevertheless deemed open for other purposes connected with the cause submitted to them." It was held that under this section, where a jury retired to consider their verdict on Saturday, the court might on Sunday give additional instructions to correct a supposed error in the law. People v. Odell, I Dakota 197. " If, in any case, this court would go into an inquiry on this subject, it need not do so in this, for the reason that nothing appears on the subject, and we must, in this as in every other case, presume in favor of the action of the criminal court. ... If the de- fendant in this case could raise the question as to whether the notice of the adjourned term was given or not, she ought to have made the objection in the criminal court, and cannot raise the question here for the first time, especially as the record is silent on the subject as to whether the notice was given or not." Harper v. State, 42 Ind. 405. A statute declaring that if the judge should not attend three days succes- sively the court should stand ad- journed sine die does not apply to in- tervals during which the court has been regularly adjourned. Redwine v. State, 15 Ind. 293; Seymour v. State, 15 Ind. 288. 2. Hoye v. State, 39 Ga. 724. The court said: " When the judge, without any sufficient legal cause, has ad- journed the regular term of the court by order in vacation, we hold that he has no power at such adjourned term to compel any party to go to trial before him. If, however, parties to civil 246 Justice's Court. AD JO URNMENTS. Referees and Arbitrators. the authorities as to whether the defendant can waive the irregu- larity of an adjournment by implication. 1 Ill JUSTICE'S COURTS. The peculiar character of the court of jus- tices of the peace, constituted as it is for the quick trial of minor causes, has led to sharp statutory restrictions of their power to adjourn a cause and to allow continuances. As such courts prac- tically never convene for any other purpose than the trial of a simple cause, the question of the legality of the adjournment of the court, as distinct from an adjournment of a case, seldom arises ; for this reason it has been thought best to refer a discussion of the statutes and principles governing the adjournment of a justice's court to a future article of this .work upon CONTINUANCES. IV. REFEREES AND ARBITRATORS. Referees and arbitrators have the inherent powers of a judicial tribunal to adjourn from day to day or to a future day certain, provided such day be not beyond the time named in the submissions or appointment, or defined by statute.* Unless they meet at the time and place appointed for the first meeting, they do not constitute a judicial tribunal, an adjournment cannot be made, and subsequent proceedings are void unless acquiesced in by parties. 3 When once constituted, failure to meet at an adjourned session does not make a subse- quent session irregular. 4 When the time limited for the reporter award expires, the power of adjournment is gone. 5 Statutory restrictions do not limit the common-law power in the absence of conflict. 6 causes make no objections and go to Irregularity Held Not to be Waived. trial, we hold the irregularity is In Hoye v. State, 39 Ga. 724, it was held waived, and that they cannot after- that where the adjourned term was ir- wards be heard to object to the judg- regular, although the defendant went ment on the ground of the illegal acts to trial without any objection to the ir- of the judge in ordering the adjourn- regularity, unless he expressly waives ment. But the rule is different in a the objection to the legality of the ad- criminal case involving the life or lib- journment, he may take advantage of erty of the' defendant. He waives it even after verdict. See also Finne- nothing by implication or intendment, gan v. State, 57 Ga. 427. and unless he expressly waives the ob- 2. Vinton v. Lindsey, 68 Ga. 291; jection to the legality of the adjourn- Ex p. Rutter, 3 Hill (N. Y.) 464; Abeel ment with a view to the trial which is v. Hubbell, 52 Mich. 38; Campau v. to bind him, we hold that he may take Brown, 48 Mich. 147; Brown v. Leavitt, advantage of it even after verdict." 26 Me. 251; Richardson v. Hartsfield, 1. Irregularity Held Waived. In 27 Ga. 528. Henslie v. State, 3 Heisk. (Tenn.) 206, 3. Harris v. Norton, 7 Wend. (N. Y.) it was held that where the defendant 534; Weir v. Johnston, 2 S. & R. (Pa.) went to trial without making any ob- 459; Stiles v. Carlisle, etc., Turnpike jection as to the irregularity of the Co., 10 S. & R. (Pa.) 289. Contra, term, he could not, after plea of not Small v. Deforest, 2 How. Pr. (N. Y.) guilty and trial, object in the appellate 176. The learned judge in the last court. case ignores 7 Wend. (N. Y.) In Smurr v. State, 105 Ind. 125, it 534. was held that if in a criminal case the 4. Harrington v. Rich, 6 Vt. 666. accused voluntarily goes to trial with- 5. Browner v. Kingsley, i Johns, out objection to the irregularity of the Cas. (N. Y.) 334. adjourned term, an objection after con- 6. Ex p. Rutter, 3 Hill (N. Y.) viction will be too late to be of avail. 464. 247 Quasi- Judicial Officers AD JO URNMENTS. Quasi-Judicial Officers. Supervision by the Court of Referee's Action. Courts will not interfere with referee's discretionary power of adjournment, 1 and it is not proper to apply to courts unless such discretion is abused. 2 Although the granting or refusal of an adjournment is discre- tionary with the referee, if injury is occasioned to either side, the court will interfere and set aside the referee's report, or appoint a new referee. 3 V. QUASI- JUDICIAL OFFICERS. All quasi-judicial officers or bodies possess an inherent power of adjournment unless restricted by stat- ute. 4 Such an adjournment is the exercise of a discretionary power, and is not the subject of review in an appellate court unless it is an abuse of the corporate functions of the adjourning body and operates to the detriment of those affected by such action. 5 Accordingly an executive council, 6 a board of commissioners for altering boundaries of school districts, 7 a town board, 8 a town meeting, 9 commissioners for condemning land, 10 a court consti- tuted only for the trial of an election case, 11 commissioners for taking depositions, 1 '-* a board of school inspectors, 13 and a board of road-viewers 14 have been held to be able to adjourn from time to time. The presumption pf legality of adjournment, 15 and the requirements that the adjournment must be reasonable in itself and attended with reasonable notice, apply to all these and similar bodies. 16 1. Sutherland, J., in Cooley v. Hunt- ington, 16 Abb. Pr. (N. Y. Supreme Ct.) 384, note; Langley v. Hickman, i Sandf. (N. Y.)68i. 2. Ex p. Rutter, 3 Hill (N. Y.) 464; Packer v. French, Hill & D. Supp. (N. Y.) 103; Forbes v. Frary, 2 Johns. Cas. (N. Y.) 224. 3. Cooley v. Huntington, 16 Abb. Pr. (N. Y. Supreme Ct.) 384, note; Forbes v. Frary, 2 Johns. Cas. (N. Y.) 224; Forrest v. Forrest, 3 Bosw. (N. Y.) 650. 4. Com. v. Brown, 28 Kan. 85; Don- ough v. Dewey, 82 Mich. 309. 5. Donough v. Dewey, 82 Mich. 309. 6. Com. v. Brown, 28 Kan. 85. 7. Donough v. Dewey, 82 Mich. 309. 8. Leavenworth, etc., R. Co. v. Meyer, 50 Kan. 25. 9. Wisconsin Cent. R. Co. v. Ash- land County, 81 Wis. i ; Goodel v. Baker, 8 Cow. (N. Y.) 288. It must be fora reasonable cause and to a specified day. People -v. Town- ship Board, 38 Mich. 615. 10. Memphis, etc., Co. v. Parsons Town Co., 26 Kan. 503. 11. Steele v. Martin, 6 Kan. 430. 12. Pindar v. Barlow, 31 Vt. 529. 13. Passage v. Board of School In- spectors, 19 Mich. 330. 14. Butman v. Fowler, 17 Ohio 101. 15. Town Meetings. Where a town board had power to adjourn a town meeting if the place of original adjourn- ment was "inconvenient," upon giving notice by proclamation, it was held that the town board were sole judges as to whether a place was so " incon- venient " as to warrant an adjourn- ment; that the provision for notice was directory and actual notice bind- ing ; and that, although the record stated that the adjournment was made at " 9 A.M." and the adjourned meet- ing began also at " 9A.M.," it would be presumed that the adjournment was made a few minutes before 9. Wis- consin Cent. R. Co. v. Ashland Coun- ty, 81 Wis. i. Presumption as to Notice. Leaven- worth, etc., Co. v. Meyer, 50 Kan. 25- 16. Unreasonable and Irregular Ad- journments. Memphis, etc., R. Co. v. Parsons Town Co., 26 Kan. 503; Ben nettw. Bennett, 37 W. Va. 396; Pindar v. Barlow, 31 Vt. 529; Beach v. Work- man, 20 N. H. 379; Wixom v. Stephens, 17 Mich. 518, 97 Am. Dec. 205; But- man v. Fowler, 17 Ohio 101; O'Neil v. Tyler (N. Dak., 1892), 53 N. W. Rep. 434- 248 ADMIRALTY. By EDWARD G. BENEDICT. L DEFINITION, 251. II. ADMIRALTY COURTS, 251. 1. District Courts, 251. 2. Circuit Court of Appeals ana Supreme Court, 252. HI. DIFFERENT KINDS OF ADMIRALTY SUITS, 252. IV. THE LIBEL, 253. V. INTERROGATORIES, 255. VI. AMENDMENTS, 256. VII. LIBELLANT'S STIPULATION FOR COSTS, 257. VIII. JOINDER OF HEM AND PERSONAM PROCEEDINGS, 257. IX. FOREIGN ATTACHMENT, 258. 1. Generally, 258. 2. Garnishment, 259. 3. Defendant's Default, 260. 4. Issue as to Ownership of Credits and Effects, 260. X. MESNE PROCESS, 261. XI. PROPERTY EXEMPT FROM SEIZURE, 262. XII. RETURN OF PROCESS. 263. 1. Time for Return, 263. 2. Contents, 263. 3. Appearance and Default, 263. 4. Claim, 264. 5. Respondent's Stipulation for Costs, 264. 6. Stipulations for Release, 265. 7. The Stipulation for Value, 266. 8. Sale of Perishable Property, 268. 9. Tender, 268. 10. Sale on Return Publication, 269. XIII. RESPONDENT'S PLEADINGS, 269. 1. Exceptions to Libel, 269. 2. Petitions under Rule 59, 270. 3. Answer, 271. 4. Counterclaim Cross Libel, 272. XIV. ISSUE, 274- XV. TRIAL, 274. 249 ADMIRALTY. XVI. INTERLOCUTORY DECREE AND REFE&EXCE, 275. 1. Generally, 275. 2. Exceptions to Report, 276. XVII. TAXATION OF COSTS, 276. XVIIL FINAL DECREE, 276. XIX. SUMMARY JUDGMENT AND EXECUTION, 278 XX. APPEALS, 278. 1. Generally, 278. 2. Appeal Bond, 279. 3. Petition of Appeal, 280. 4. Assignment of Errors, 280. 5. The Citation, 280. 6. Filing Paper .:, 281. 7. Exceptions to Hand, 281. 8. The Apostles, 281. 9. .Msw Testimony, 281. 10. Briefs, 282. 11. Hearing, 282. 12. Decision Mandate, 282. 13. Final Decree, 283. 14. Appeal to Supreme Court, 283. XXI. EVIDENCE, 283. 1. Generally. Rules, 283. 2. Depositions De Bene Esse, 284. 3. Commissions to Take Testimony, 285. 4. Letters Rogatory, 285. 5. Deposition In Perpetuam Ret Memor tarn, 286. XXII. PETITIONS AND MOTIONS, 286. XXIII. LIMITATIONS OF ACTIONS, 287. XXIV. INTERVENTION, 288. XXV. CONSOLIDATION OF SUITS, 289. XXVI. PERSONAL INJURIES DEATH, 289. XXVII. DEATH OF A PARTY, 290. XXVIII. COSTS, 290. XXIX. LIMITATION OF LIABILITY, 293. 1. Generally, 293. 2. The Proceeding, 295. a. Generally, 295. b. The Petition or Libel, 296. c . Proceedings under the Libel, 297. [298. d. Proof of Claims and Return of Monition, e. Decree, 298. f. Costs, 299. XXX. PRIZE, 299. 1 . Generally, 299. 2. Captor's First Duty, 300. 3. Prize Commissioners, 300. 250 Definition. ADMIRALTY. Courts. 4. Examinations in Preparatorio, 301. 5. Ftting the Libel, 301. 6. Proceedings on Return of Process, 302. 7. Decree by Default, 302. 8. Further Proofs, 302. 9. Distribution of Proceeds, 303. 10. Costs and Expenses, 303. 11. Damages, 303. 12. Appeals, 304. 13. Military Salvage on Recaptures, 304. I. DEFINITION. Admiralty practice as comprehended in this article is the practice of the courts of the United States sitting as Courts of Admiralty. 1 II. ADMIBALTY COUBTS 1. District Courts. The courts having original jurisdiction of suits or causes in admiralty are the United States Courts. On the foundation of the government, this grant of original jurisdiction over all cases of admiralty was given to the United States District Courts for the various judicial districts of the country. 3 1. Nature of Admiralty Practice. "The Admiralty should be otherwise known than as a court of curious learning, where controversies are determined upon principles and under forms which, to the popular feeling, are un- usual, abstruse, or difficult of appre- hension. Its process and forms are indeed in many respects different from the common law, the administration of which is most generally familiar to the people of the United States. But one of its main and most characteristic features is that it is, to the extent of its jurisdiction, a court of equity. It entertains pleas of part performance, and decrees an instrument to be good in part and bad in part, as the fact and equity of the case may be. It annuls positive contracts improvidently en- tered into by its "ward," the seaman, and is not restrained from his protec- tion by the binding sanctity of a seal. It rejects altogether in its pleadings the technical niceties of the common law, and requires only that the sub- stantial merits should be set forth, in forms that are peculiar, indeed, but wholly liberal and unembarrassing. In the construction of contracts it seeks to combine the intention of the parties and actual justice in the result of their controversies." George Ticknor Curtis. 2. United States Courts are the Courts of Admiralty, with the exception of the United States Circuit Courts, which have no admiralty jurisdiction since the Act of Congress establishing Cir- cuit Courts of Appeals (26 Sts. at L. p. 826) except in certain cases of dis- ability of the District Judge (Rev, Sts. sees. 587, 588), and in admiralty matters involving some crimes of owners and officers of vessels (Rev. Sts. sec. 629; Ben. Adm. 578). This jurisdiction to the federal courts in civil cases of admiralty is given by U. S. Const, art. in, sees, i, 2. 3. District Courts. Rev. Sts. sec. 563. See Wayman v. Southard, 10 Wheat. (U. S.) i ; Beers v. Haughton, 9 Pet. (U. S) 329. These courts are held by one judge, the United States District Judge for that particular District, who, in admiralty causes, is judge of the facts aswell as the law. Rev. Sts. sees. 551. 55- There is no right to trial by jury in the admiralty except in cases arising on the great lakes. Rev. Sts. sec. 566 ; U. S. v. Schooner Betsey, 4 Cranch (U. S.) 443 ; Bigley v. The Venture, 21 Fed. Rep. 880. The District Judge sits alone to hear the entire cause, except that in certain of the Districts the court sometimes calls to its assistance experts in sea- manship, to whom are submitted doubtful questions of navigation, and the court applies the rules of law to the statement of the proper rules of navigation as laid down by them. Such experts are commonly called admiralty assessors. They correspond to the Elder Brethren of the Trinity House in the English Admiralty Courts. 251 Different Kinds of Suits. ADMIRALTY. Different Kinds of Suits. 2. Circuit Court of Appeals and Supreme Court. The causes hav- ing been heard and decided in the District Courts, then go by appeal to the United States Circuit Courts of Appeals. 1 This court is the final court for admiralty causes ; except that in prize causes, and causes involving the jurisdiction of the District Court, the construction or application of the Constitution, and cases of conviction of capital or otherwise infamous crimes, an appeal lies directly from the District Court to the Supreme Court of the States. 2 III. DIFFERENT KINDS OF ADMIRALTY SUITS. In general, there are two kinds of admiralty suits: the suit /;/ personam and the suit in rem. 3 The first of these may be a simple suit in personam, or a suit in personam with a clause of foreign attachment. These suits may in certain cases be joined. 4 Suit in Personam. The suit in personam is a proceeding against a personal defendant who can be served with process in the dis- trict, as in an ordinary action at common law. 3 In such a suit the defendant is not required to furnish security on appearing to defend, except the security for costs, spoken of hereafter. 6 The Suit in Personam with Clause of Foreign Attachment corresponds to an action at law begun against a non-resident defendant by attach- ment of his goods and chattels in the district. 7 1. Circuit Court of Appeals. These are courts established by the Act of March 3, 1891, 26 Sts. at L. p. 826, in each of the nine circuits into which the country is divided. Admiralty ap- peals are heard by three Judges, who may be a Supreme Court Justice sit- ting with Circuit Judges, or a Circuit Judge sitting with District Judges, or all Circuit or all District Judges. The District Judge who heard the case in the court below is, however, disquali- fied from sitting on the appeal. The court consists of three judges, but two constitute a quorum, and hence an ap- peal may be heard by two only. Act of March i, 1891 ; 26 Sts. at L. p. 826. 2. Act Cong. March I, 1891, 5. These exceptions are, however, rare, and an admiralty case generally goes through the District Court and the Circuit Court of Appeals only. Certifying Questions to Supreme Court. In addition to the above, any Cir- cuit Court of Appeals may certify to the Supreme Court any questions or propositions of law concerning which the said Circuit Court of Appeals de- sires instruction. And the Supreme Court may require, by certiorari or otherwise, any case to be certified up to it for its review and determination. Act Cong. Mch. i, 1891, 6. 3. See discussion of in rem and in personam suits in The Merchant, Abb. Ad. i. 4. Joinder of Rem and Fersonam Pro- ceedings. See post, VIII. Treating In Rem Proceeding as one In Personam. It has been held that a court could treat a suit begun in rem as one in personam, where no injustice would be done thereby. 118 Sticks of Timber, 10 Ben. (U. S.) 86. See Copp v. De Castro, etc., Co., 8 Ben. (U.S.) 321. See also The Monte A., 12 Fed. Rep. 331. 5. As to beginning a suit in per- sonam by attachment, see X,post. Suit in personam for repairs to a domestic vessel is within the admiralty jurisdic- tion. Endener v. Greco, 3 Fed. Rep. 411. See The Brothers, 7 Fed. Rep. 878. Also a suit to enforce payment of costs awarded by the decree of an admiralty court of another district. Pennsylva- nia R. Co. v. Gilhooley, 9 Fed. Rep. 618. 6. Post, XII, 5. 7. Atkins v. Fiber Disintegrating Co., 18 Wall. (U. S.) 272; Manro v. Al- meida, 10 Wheat. (U. S.) 473. 252 The Libel. ADMIRALTY. The Libel. Suit in Rem. The third suit is different from any common-law action, except, perhaps, actions for forfeiture, in that the offending vessel, or the debtor cargo, or some res or thing, is directly made defendant' and proceeded against. 1 IV. Tio LLBEL. An admiralty suit is commenced by the filing of the complaint, or, as it is called in admiralty, the libel, 2 in the L Maritime Liens as Basis of Suit. B~n. Adm. 362; The Dictator, 7 Asp. Mar. L. Cas. 251; The J. W. French, 13 Fed. Rep. 916; The Guid- ing Star, 18 Fed. Rep. 263. The ex- istence of a MARITIME LIEN is the basis -of the suit in rem. Beane v. The Mayurka, 2 Curt. (U. S.) 72; and the suit cannot be maintained without it. Vandewater v. Steamship Yankee Blade, McAll. (U. S.) 9; The Larch, 2 Curt. (U. S.) 427. Liens will become barred by unreasonable delay in en- forcement. The Galloway C. Morris, 2 Abb. (U. S.) 164; The H. B. Foster, 3 Ware (U. S.) 165; Steamboat Buck eye State, Newb. Adm. (U. S.) in; The D. M. French, i Lowell (U. S.) 43; Steamer Nevada, 2 Sawy. (U. S.) 144. A master has no lien on the ves- sel for wages under the maritime law. The Dubuque, 2 Abb. (U. S.) 20; The Larch, 2 Curt. (U.S.) 427. One who lends money for a vessel's repairs has a lien. Davis z/. Child, Davies (U. S.) 71. Seamen's wages on an illegal voy- age are no lien. Brig Langdon Cheves, 2 Mason (U. S.) 58. Proceedings in rem cannot be instituted against an undivided interest of an owner in a vessel. Manhattan F. Ins. Co. v. Five Sixteenths of Schooner C. L. Breed, i Flip. (U. S.)655. A part owner cannot put in a claim for wages in opposition to creditors who have liens thereon. Petrie v. Steam-tug Coal-Bluff No. 2, 3 Fed. Rep. 531. Proceedings in rem can be brought against domestic ves- sels only when the local law gives a lien. The Asa R. Swift, Newb. Adm. 553: The Alida, Abb. Adm. 165. See Rodd v. Heartt, 21 Wall.(U. S.) 558. As to maritime liens generally, see tit. MARITIME LIENS, Am. & Eng. Ency. Law. 2. Technical Rules of Common-Law Pleading do not prevail in admiralty, but there must be substantial agreement between pleading and proof. West v, Steamer Uncle Sam, McAll. (U.S.) 505; Jenks v. Lewis, i Ware (U. S.) 51. See The Kendal, 56 Fed. Rep. 237; Hays v. Pittsburg, etc., Packet Co., 33 Fed. Rep. 552; Sloop Merchant, Abb. Adm. 51. But the libellant may be al- lowed to amend. The City of New Orleans, 33 Fed. Rep. 683. See VI, post. The Preferable Form of Suit. In the two latter classes of suits, the defend- ant, on obtaining the release of his property, is obliged to give security to pay the claim, if found liable by the court. Hence, such suit is preferable to one in personam, unless the defend- ant is amply able to respond to a judgment. Where Several Parties are Interested. As a general rule, when several persons have claims in rem of a like nature against a single thing, and all involving one question, all may join in a single libel. The Young Mechanic, 3 Ware (U. S.) 58. A libel may be filed for libellants and all other persons in- terested. American Ins. Co. v. John- son, B. & H. Adm. 9. Time of Filing Libel. Libel prema- turely filed may be dismissed. The Martha, B. & H. Adm. 151. In admir- alty parties prosecute or defend upon their rights as existing at the institu- tion of the suit, without regard to the state of the parties when the right of action or defense accrued. The Bos- ton, B. & H. Adm. 309. A defendant may waive the fact of a premature filing of the libel. The Edward, B. & H. Adm. 286; The Salem's Cargo, i Sprague (U. S.) 389. The objection that a libel is prematurely filed should be taken by exception on return of process. Furniss v. Brig Magoun, Olc. Adm. 55. The Notice of the Pendency of the suit dates from the service of process on the vessel. The Robert Gaskin, 9 Fed. Rep. 62; Ben. Adm. 372 et seq. Libel Should Show Jurisdiction. The libel should always show the jurisdic- tion of the court. Boon v. The Hor- net, Crabbe (U. S.) 426 ; Thomas v. Lane, 2 Sumn. (U. S.) I. Libel of Keview, When Lies. Jackson v. Munks, 58 Fed. Rep. 596; Snow v. Edwards, 2 Lowell (U. S.) 273; North- western Car Co. v. Hopkins, 4 Biss. (U. S.) 51. 253 The Libel. ADMIRALTY. The Libel. office of the clerk of the district court of the district in which the defendant, or in which the res, or property, can be found. 1 Form and Contents. The libel is a pleading in the form of a petition addressed to the judge of the court, setting forth the nature of the action, as, for example, that it is a cause, civil and maritime, of contract, or of tort and damage, or of salvage, etc.; '* if the libel be in rem, that the property is within the district ; if in personam, the names, occupations, and places of residence of the parties. 3 The cause of action must then be set forth in distinct articles. 4 1. Fretz v. Bull, 12 How. (U. S.) 466; The Richard Doane, 2 Ben. (U. S.) in; The Young Mechanic, 3 Ware (U.S.) 58; The R. P. Chase, 3 Ware (U.S.) 294; The Queen, 40 Fed. Rep. 694; The Slavers, 2 Wall. (U. S.) 383. In admiralty, a personal defendant is commonly called the respondent. Misjoinder of Parties libellant does not prevent decree, when not ob- jected to. Coast Wrecking Co. v. Phcenix Ins. Co., 7 Fed. Rep. 236. See The Ping-On v. Blethen, n Fed. Rep. 607. Suit by Non-Resident. A consignee of goods, though but an agent of a non- resident owner, may sue in his own name for the loss of the goods. The Nail City, 22 Fed. Rep. 537. Owner of Goods Injured by Collision may libel for his own loss and for his insurers, when. The Anchoria, 9 Fed. Rep. 840. When libellant, "on be- half of all entitled," may settle suit for his own interest. McConnochie v. Kerr, 9 Fed. Rep. 50. 2. But a Libel for Salvage, alleging that it was " a cause of contract, civil and maritime and for extra services rendered," will not prevent the claim. Adams v. Bark Island City, i Cliff. (U. S.) 210. 3. Fretz v. Bull, 12 How. 'U.S.) 466; The Queen of the Pacn. :, 61 Fed. Rep. 213. 4. Form of Libel: particularity in pleading. Brig Joseph Gorham, 7 Law Rep. 135 ; Schooner Boston, i Sumn. (U. S.) 328; Holmes v. Oregon, etc., R. Co., 6 Sawy. (U. S.) 262; Whit- tock v. Barque Thales, 20 How. Pr. (N. Y.) 447; Brig Caroline v. U. S., 7 Cranch (U. S.) 496; Schooner Anne v. U. S., 7 Cranch (U. S.) 570; Orne v. Townsend, 4 Mason (U. S.) 541. A tender should not be alleged in a libel. Mott v. Frost, 45 Fed. Rep. 897; Brig Aurora v. U. S., 7 Cranch (U. S.) 382. Libel to recover penalty under passenger act need not allege that master has been convicted and fined. The Scotia, 39 Fed. Rep. 429. Libel for loss of cargo in collision must set forth a sufficient identifica- tion of the goods and also the es- sential elements of any contract of in- surance on which rights or liabilities of parties may depend. The Anchoria, 9 Fed. Rep. 840. In a libel of informa- tion it is not necessary to allege that the act was done contrary to the form of the statute in such case made and provided. The Idaho, 29 Fed. Rep. 187. When a penalty is demanded against a vessel upon grounds not set forth in the libel, it will be ignored. The Pope Catlin, 31 Fed. Rep. 408. In a suit on a charter-party a copy thereof should be attached to the libel. Card v. Hines, 33 Fed. Rep. 189. A libel of information for an offense created by statute must conclude against the form of the statute, or re- fer to some statute on which the pros- ecution may rest. The Nancy, i Gall. (U. S.) 67. And it must describe ex- actly the offense. Schooner Hopper v. U. S., 7 Cranch (U. S.) 389. But a libel of information in admiralty need not be expressed with the technical nicety of an indictment at common law. The Samuel, i Wheat. (U. S.) 9. See 18,000 Gallons of Distilled Spirits, 5 Ben. (U. S.)4; Two Hundred Chests of Tea, 9 Wheat. (U. S.) 430; U. S. v. Brig Neurea, 19 How. (U. S.) 92; Locke v. U. S., 7 Cranch (U. S.) 339; U. S. v. Schooner Paryntha Davis, i Cliff. (U. S.) 532; Schooner Betsey, I Mason (U. S.) 354; U. S. v. Schooner Little Charles, i Marsh. (U. S.) 347 In a collision libel it is not sufficient to allege that the colliding vessel was negligently handled, but the facts must be given so that the court may see judicially that negligence contrib- uted to the result. The H. P. Baldwin 2 Abb. (U. S.) 257. On libel for forfeit- 254 Interrogatories. ADMIRALTY. Interrogatories. Prayer for Belief. The libel is closed with a prayer to the court for relief * in a suit in per sonant, that the court will hear the cause, and adjudge the respondent liable ; in a suit in personam with a clause of foreign attachment, that, if the respondent cannot be found, his goods and chattels or credits and effects may be attached to answer libellant's claim ; in a suit in rent, that the property may be sold and libellant paid out of the proceeds. 8 Other prayers of course become necessary in special suits, as in suits for possession, 3 or for a sale, or limitation of liability. Verification. Libels must be verified by the party, 4 if within the United States and within 100 miles of the place of trial ; other- wise by an agent or attorney of the party, who should give the grounds of his knowledge of the facts, and the reason why the verification is made by him. 5 V. INTEEROGATOEIES By Libellant. At the close of the libel the 2. Dupont de Nemours v. Vance, 19 How. (U. S.) 162; Pettingill v. Dins- more, Davies (U. S.)ao8; Tread well v. Joseph, i Sumn. (U. S.) 390; Schooner Boston, i Sumn. (U. S.) 328; McWill- iams v. Steam-tug Vim, 2 Fed. Rep. 874; The Anchoria, 9 Fed. Rep. 840. 3. A sheriff may sue in admiralty to recover possession of a vessel attached by him, and taken out of his custody and removed to another state. The Bonnie Boon, 36 Fed. Rep. 770. 4. Hutson v. Jordan, I Ware (U. S.) 386. Pleadings in admiralty may be sworn to before a judge, clerk, U. S. commissioner, or notary public. The seal of a notary public is not essential. Tug E. W. Gorgas, 10 Ben. (U. S.) 460. Each party in admiralty may re- quire the answer of the other under oath. Jay v. Almy, i Woodb. & M. (U. S.) 262. 5. The personal oath of the libellant to the truth of the facts of the libel may be obtained, if required by re- spondent, by means of a commission or dedimus potestatem. See post. Failure of Libellant to Sign. Process issued on libel signed by proctors in their firm name is not void. The fail- ure of libellant to sign is a defect amendable, and to be overlooked by the court after judgment. Hardy v. Moore, 4 Fed. Rep. 843. Naming li- bellant by initials is immaterial. Id. The Authority of an Attorney to Verify a libel need not appear in the libel, but may be proved when called in question. Martin v. Walker, Abb. Adm. 579. But the modern practice is to give in the affidavit of verifica- tion the reason for such verification. ure it is necessary to aver an actual seizure of tne vessel. The Washing- ton, 4 Blatchf. (U. S.) 101; Tug Oconto, 5 Biss. (U. S.) 460; Schooner Silver Spring, i Sprague (U. S.) 551; The Fideliter v. U. S., i Sawy. (U. S.) 153- A libel by material-men to enforce a maritime lien should show the foreign nature of. the ship; a libel to enforce a lien against a domestic vessel should specify the statute conferring the lien. Propeller Charles Mears, Newb. Adm. 197. Neglect to aver owner- ship waiver. Steamship Ville de Paris, 3 Ben. (U. S.) 276. Libel in personam for loss of goods must charge the vessel as a common car- rier; a libel in rem need not so charge. The Pacific, Deady (U. S.) 17. Declarations in Collision Cases should aver what happened on the one vessel: they may aver a belief as to what happened on the other vessel, but absolute proof as to the latter is not required. The Cambridge, 2 Low. (U. S.) 21. In collision cases a full averment of the facts is necessary. Bark Havre, i Ben. (U. S.) 295; Schooner Washington Sturges, 9 N. Y. Leg. Obs. 321; Steamboat Transport, i Ben. (U. S.) 86; McWilliams v. Steam- tug Vim, 2 Fed. Rep. 874. 1. The H. P. Baldwin, 2 Abb. (U. S.) 257; McWilliams v. Steam-tug Vim, 2 Fed. Rep. 874; The L. P. Dayton, 18 Blatch. (U. S.) 411. Under a prayer for general relief an admiralty court may make such decree as is required by the proof, though not precisely stated in the libel. Sonsmith v. The J. P. Donaldson, 21 Fed Rep. 671. 255 Amendments. ADMIRALTY. Amendments. libellant is entitled to propound to the defendant any interroga- tories which he may desire to have answered concerning the alle- gations of the libel. 1 By Defendant. And in like manner the defendant may, at the foot of the answer, propound interrogatories to the libellant which must be answered under oath. 2 VI. AMENDMENTS Matters of Form. Amendments to pleadings in matters of form are always allowed, as of course, at any time, on motion to the court. 3 Matters of Substance. And amendments in matters of substance are commonly allowed to be made, on cause shown; and new counts may in like manner be filed. 4 But in these cases the court may 1. Ben. Adm. 477. Inspection of Documents canr^t be had by means of interrogatories. Have- meyer, etc., Co. v. Compania Trans- atlantica Espanola, 43 Fed. Rep. 90. See Scobel -v. Giles, 19 Fed. Rep. 224. The Defendant is Bound to Answer them specifically on oath at the time of filing his answer; or he may incor- porate the answers to the interroga- tories generally in his answer. The answers stand, as evidence, like the pleadings only. The Serapis, 37 Fed. Rep. 436. If defendant fails to answer the in- terrogatories, the libellant may except to his answer, and the answer may be stricken out, and libellant have judg- ment by default. 2. Penalty for Failure to Answer is the dismissal of the libel, or the compel- ling of an answer by an attachment, or the taking of the subject-matter of the interrogatories pro confesso against the libellant. Ad. Rule 32. Amendment by Inserting Interroga- tories. If a pleading shall have been filed without interrogatories, which the party afterwards desires to pro- pound, the proper practice is to file an amended pleading, containing the de- sired interrogatories at the foot there- of. The Edwin Baxter, 32 Fed. Rep. 296. 3. Rev. Sts. sec. 954; Brig Caro- line v. U. S., 7 Cranch (U. S.) 496; Schooner Adeline, 9 Cranch (U. S.) 244; The Divina Pastora, 4 Wheat. (U. S.) 52; The Mary Ann, 8 Wheat. (U. S.) 380; Schooner Anne v. U. S., 7 Cranch (U. S.) 570; The Charles Morgan v. Kouns, 115 U. S. 69; The Louisiana, 37 Fed. Rep. 664; The City of New Orleans, 33 Fed. Rep. 683. Changing Nature of Action. But an amendment which changes a suit tit rem to one in personam will not be al- lowed. The General Sedgwick, 29 Fed. Rep. 606; nor an amendment which changes the entire nature of the claim. The Alanson Sumner, 28 Fed. Rep. 670; nor one introducing a new ground of claim where evidence on that point has not been taken and de- fendant's witnesses are gone. The Keystone, 31 Fed. Rep. 412. On Appeal. Amending defective process on appeal. Mason v. Ervine, 27 Fed. Rep. 240. It has been held that amendments could be made jn the Cir- cuit Court. The Charles Morgan v. Kouns, 115 U. S. 69. Claim of Interest. A libel may be amended to claim interest after all the issues of the suit, except the amount of damages, have been decided. The J. E. Trudeau, 54 Fed. Rep. 907. Carrying Claim Back. It is necessary to amend a libel before evidence can be admitted carrying libellant's claim for wages back of the date named in the original libel. Pinkham v. Rutan, 31 Fed. Rep. 496. Substitution of Claimants. Substitu- tion of one claimant for another. Rights of sureties. Boden v. Dem- wolf, 56 Fed. Rep. 846. Supplemental Pleadings. See 841 Tons of Iron Ore, 15 Fed. Rep. 615; The Tubal Cain, 9 Fed. Rep. 834; Hen- derson v. 300 Tons Iron Ore, 38 Fed. Rep. 36; Thomas v. Gray, B. & H. Adm. 493. 4. The Imogene M. Terry, 19 Fed. Rep. 463; Schooner Edwin Post, 6 Fed. Rep. 314. See The Monte A., 12 Fed. Rep. 331; The Corozal, 19 Fed. Rep. 655; The Manha'sset, 19 Fed. Rep. 430; The George Taulane, 22 Fed. Rep. 799; The J. E. Trudeau, 54 Fed. Rep. 907. But the court will not allow an amendment which changes the entire 256 Joinder of Bern and ADMIRALTY. Personam Proceedings. impose terms on the party desiring to amend. 1 VII. LIBELLANT'S STIPULATION FOE COSTS. With the libel must be filed a stipulation for costs, which is an unsealed agreement entered into by the libellant. with sureties, to pay all costs which may be awarded against him in case he fails in his suit. 2 VIII. JOINDER OF HEM AND PERSONAM PROCEEDINGS Right to join. In certain cases the rules of the supreme court permit a libellant to join rem and personam proceedings ; in certain cases they for- bid such joinder ; in other cases they are silent. 3 But in cases nature of the claim, to the prejudice of the other parties. The Alanson Sumner, 28 Fed. Rep. 670; The Gen- eral Sedgwick, 29 Fed. Rep. 606; The Keystone, 31 Fed. Rep. 412; The Thomas Melville, 31 Fed. Rep. 486, New Haven Steamboat Co. v. The Mayor, 36 Fed. Rep. 716. 1. Rev. Sts. sec. 954; The Epwin Post, 6 Fed. Rep. 314; The Maryland, 19 Fed. Rep. 551; The Monte A., 12 Fed. Rep. 331; The George Taulane, 22 Fed. Rep. 799. 2. Rawson v. Lyon, 23 Fed. Rep. 107. Amount of Stipulation. The amounts required vary in the different districts. In the New York districts, in cases in rem, the stipulation must be in the sum of $250; in cases in personam, $100. A resident party need supply but one surety; non-residents must supply two; and all must justify in double the amount of the undertaking. When not Required. The United States is never required to give stipu- lations for costs. Under the rules of the Eastern and Southern Districts of New York, seamen, and sailors com- ing 'nto port in possession of property saved, petitioners for money in the Registry of Court, and the cities of New York and Brooklyn need give no stipulations. And in any case, on proper cause shown, the court has the power to dispense with the stipula- tion and allow the libellant to prose- cute in forma pauperis. Thomas v. Thorwegan, 27 Fed. Rep. 400. See The Phoenix, 36 Fed. Rep. 272. Chap. 209 of the Laws of 1892 (Sts. at L., vol. 27, p. 252) apparently permits a citizen to sue in forma pauperis without ap- plication to the court, and on the filing of a libel accompanied by an affidavit in the form of that statute process will issue as of course. If libellant be not a citizen, or there are any spe- cial circumstances, the order of court is still necessary. This statute seems i Encyc. PI. & Pr. 17. to refer only to exemption from pre- payment of costs. The court also has power to exact security in cases usually commenced without it. Cole v. Tollison, 40 Fed. Rep. 303. Sea- men and poor suitors are not re- quired to give security. The Shel- bourne, 30 Fed. Rep. 510; The Phoenix, 36 Fed. Rep. 272; Bradford v. Brad- ford, 2 Flip. (U. S.) 281; Polydore v. Prince, i Ware (U. S.) 402; Thomas v. Thorwegan, 27 Fed. Rep. 400. Com- pare Wheatley v. Hotchkiss, i Sprague (U: S.) 225. ' Waiver. The rule requiring stipula- tion for costs may be waived. Poly- dore v. Prince, I Ware (U. S.) 402. 3. Thus in Supreme Court Rules, 12 to 20 are named cases of supplies, wages, pilotage, collision, assault, ma- rine hypothecations, bottomry, and sal- vage, and the rules state specifically whether the ship, freight, owner, or master, or any one or more of them, may be proceeded against. See Bon- dies v. Sherwood, 22 How. (U. S.) 214; The Alida, 12 Fed. Rep. 343; The Guiding Star, i Fed. Rep. 347; The Clatsop Chief, 8 Fed. Rep. 163; The Corsair, 145 U. S. 335. In a suit in rem to recover possession of a wreck, it is improper to join the wreckmaster. The Margaretta, 29 Fed. Rep. 324. Joinder of in rem and in personam suits for salvage against the same goods is not permitted. Nott v. Steamboat Sa- bine, 2 Woods (U. S.) 211. When a libel is filed against. a vessel and its master for a cause of action in which both may be liable, the libellant will not be compelled to elect between his remedy in rem and in personam. The Zenobia, Abb. Adm. 48. Separate trespasses by defendants who are not jointly liable. Thomas v Law, 2 Sumn. (U. S.) i; Roberts v. Skolfield, 3 Ware (U. S.) 184. Action for assault and action for wages. Pratt v. Thomas, i Ware (U. S.) 437; Borden v. Hiern, B. & H. Adm. 293. An objection to a suit be- 257 Foreign Attachment. ADMIRALTY. Generally. where it is not expressly forbidden by those rules, the courts have generally agreed that the cause in rem may be united in one suit with the cause in personam. V One Suit as Bar to Another. Analogous to the above is the question whether a suit in rem is a bar to a suit in personam on the same cause of action. It is not, even in cases of collision, where the two suits cannot be joined, unless in case of special hardship caused by the bringing of the two suits. One may, however, be stayed until the hearing of the other.* IX. FOEEIGN ATTACHMENT i. Generally. The Supreme Court rules provide that the mesne process 3 maybe, among other things, by a warrant of arrest of the person of the defendant, with a clause or order therein, if he cannot be found, to attach his goods and chattels to the amount sued for, or, if such property cannot be found, to attach his credits and effects to the amount sued for in the hands of the garnishee named therein. 4 This is called foreign attachment. cause of such joinder should be taken by exception before answer. The City of Carlisle, 39 Fed. Rep. 807. A suit in personam will not lie against a mas- ter for failing to sign a clear bill of lading, but the remedy is against the owners, or in rem against the vessel. Paterson v. Dakin, 31 Fed. Rep. 682. Collision. Ward v. The Ogdensburg, 5 McLean (U. S.) 622; Mayor v. White, 59 Fed. Rep. 617. In rem against the vessel and in personam against the master may be joined. Newell v. Nor- ton, 3 Wall. (U. S.) 257. Wages. Sloop Merchant, Abb. Adm. i. Contract. Henry v. The Josie, 59 Fed. Rep. 782. A proceeding against the vessel and one against the cargo may be joined when both arise out of the same trans- action. The Dauntless, 7 Fed. Rep. 366. The question of the right to sue ship or freight, or master or owner, for particular services does not depend on the I2th rule, but upon the gen- eral admiralty and maritime law. Brig Eledora, 2 Ben. (U. S.) 31. 1. In suits on charter-parties and contracts of affreightment it is settled that one may join the two remedies. The Director, 26 Fed. Rep. 703; The Baracoa, 44 Fed. Rep. 102; Vaughan v. 630 Casks, 7 Ben. (U. S.) 506; The J. F. Warner, 22 Fed. Rep. 345; The City of Carlisle, 14 Sawy. (U. S.) 179; The Monte A., 12 Fed. Rep. 331; The Prinz Georg, 19 Fed. Rep. 653. The 59th Kule. This right to join the different proceedings has been considerably enlarged since the adop- tion of the sgth Rule, permitting one sued to bring into the same suit, by pe- tition, an alleged joint tort-feasor. In the case of The City of Lincoln, 25 Fed. Rep. 835, the original libel was filed against the ship to recover for damage done to cargo in discharging it upon a wharf. The ship petitioned that the wharfinger might be made a codefend- ant, and the court, under the analogy of the sgth Rule, granted the petition and made the owner of the pier codefend- ant with the ship, and on final hearing each was compelled to pay one-half the damages. In the case of Joice v. Canal Boats, 32 Fed. Rep. 553, the court held that the isth Rule, pro- hibiting joinder of owner and vessel in cases of collision, referred only to the joinder of the vessel and her own owners, and that even in cases of col- lision there could be joined one of the offending vessels with the owners of another vessel, alleged to be liable for the same collision. See The Alert, 40 Fed. Rep. 836. Contra, The Young America, I Brown Adm. 462. 2. Atlantic Mut. Ins. Co. v. Alexan- dre, 16 Fed. Rep. 279; Watson v. Jones, 13 Wall. (U. S.) 715 ; BuckV Colbath, 3 Wall. (U. S.) 334; Providence Wash- ington Ins. Co. v. Wager, 35 Fed. Rep. 364; The Normandie, 40 Fed. Rep. 590, affirmed 58 Fed. Rep. 427. See The City of New York, 25 Fed. Rep. 149. 3. See post, X. 4. Adm. Rule 2; Ben. Adm. 426 et seq. The Alpena, 4 Fed. Rep. 361. The process of foreign attachment is gov- 258 Foreign Attachment. ADMIRALTY. Garnishment. 2. Garnishment. If the defendant has no goods and chattels which can be found by the marshal within the district, then his credits and effects in the hands of third parties may be attached. And as it is not necessary for the marshal to delay in attaching goods and chattels in order to find and make service upon the de- emed primarily by the rules of the Supreme Court. Shorey v. Rennell, I Sprague (U. S.) 418. The clause of Rule 2 providing that goods may be attached if defendant cannot be found does not mean found for the purpose of arrest, so as to jus- tify an attachment in a case where de- fendant is actually within and a resi- dent of the district, but cannot be ar- rested because of the state law. The Bremena v. Card, 38 Fed. Rep. 144. The Practice is Old, dating at least from the time of Queen Elizabeth, being fully set forth in Clerke's Praxis, a manual of admiralty practice pub- lished at that time. Clerke, Praxis Curiae Admiralitatis Angliae, tit. 24-32. See Smith v. Miln, Abb. Adm. 373. The Modern Practice under the Su- preme Court rule is not to apply for a warrant of arrest for the defendant, but for a simple monition to him to appear and answer the libel, and if he cannot be found by the marshal, and the monition in consequence cannot be served, then the marshal may attach the respondent's goods and chattels. When the marshal returns that he has made reasonable efforts to find defend- ant before attaching the property, the attachment will not be set aside. Har- riman v. Rockaway Beach Pier Co., 5 Fed. Rep. 461. An iron pier is not " goods and chattels." Id. If such Goods and Chattels cannot be Found, then the marshal may attach his credits and effects in the hands of a third party. Gaines zt. Travis, Abb. Adm. 422; Gardner v. Isaacson, Abb. Adm. 141. See Chiesa v. Conover, 36 Fed. Rep. 334. Attachable credit. Dent v. Radmann, i Fed. Rep. 882. The Object of the Practice is to compel the appearance of the defendant and render him or his property subject to the decree. Smith v. Miln, Abb. Adm. 373. It is not necessary that he be a foreigner or a non-resident of the state. Atkins v. Fiber Disintegrating Co., 18 Wall. (U. S.) 272. Non-Residence Service of Process. It is not even necessary that he be a non- resident of the district. The sole requisite of the right to so attach is that he be not found within the district by the marshal to be served with the citation. Grace v. Evans, 2 Ben. (U. S.) 479. A libel in personam in ad- miralty is not a civil suit within the meaning of the eleventh section of the Judiciary Act; and it is sufficient ser- vice of process to give the court juris- diction if property of the respondent found in the district has been attached, irrespective of the residence or pres- ence of the respondent. Manchester Hopkins v. Hotchkiss, 13 Int. Rev. Rec. 125, 10 Am. L. Reg. (N. S.) 379; Atkins v. Fiber Disintegrating Co., 18 Wall. (U. S.) 272; Bouysson v. Miller, Bee Adm. 186; Clarke v. New Jersey Steam Nav. Co., i Story (U. S.) 531. A court of admiralty may arrest the person, the property, or, by a foreign attachment, the choses in action, of a tort-feasor. The Invincible, 2 Gall. (U. S.) 29. When, in a suit in personam, defendant's property has been at- tached, but process has not been per- sonally served, a decree cannot be made against the defendant person- ally. Boyd v. Urquhart, I Sprague (U.S.) 423- The Marshal is not Bound to Make any Extended Search for the Defendant within the district. He should go to the defendant's residence or his place of business; but if he cannot be found at such place, the marshal is justified in making a return that, not finding the defendant, he thereupon attached his goods and chattels. See Interna- tional Grain Ceiling Co. v. Dill, 10 Ben. (U. S.) 62. Names of Non-Kesidents. When the owners of a vessel are all non-resi- dents it is not necessary to specify them all by name before obtaining an attachment of the vessel. Card v. Hines, 39 Fed. Rep. 818. See Card v. Hines, 35 Fed. Rep. 598. When suit has been brought against one of two shipowners, and property attached thereunder and released before the name of the other owner is introduced, the suit must be regarded as against the original respondent only. National Board of Marine Underwriters v. Melchers, 45 Fed. Rep. 643. 259 Foreign Attachment. ADMIRALTY. Ownership of Effects. fendant, so it is not necessary for the marshal to lose time in searching for his goods and chattels when he knows of credits and effects belonging to him which may be attached in the hands of a third party. Such third party is called a garnishee, and such attachment is called a garnishment of property. 1 3. Defendant's Default. If the marshal returns that he has not found the defendant, but has attached his goods and chattels, the libellant may take the default of the defendant, and obtain an order for the sale of the goods and chattels to satisfy his claim. But the defendant may at any time, either before or on the return of process, obtain the release of his goods and chattels on giving proper stipulations to appear and abide by all orders of the court. 5 * 4. Issue as to Ownership of Credits and Effects. When the de- fendant does not appear, the garnishee may come in and deny that the credits and effects attached belong to the defendant. This raises a preliminary issue which must be determined before default can be taken. If it is admitted that the credits and effects are 1. Garnishment Process. Property is attached in the hands of a third party by the service of a copy of the process on the person who holds the credits and effects, the marshal at the time exhibiting to such person the origi- nal process. Gushing v. Laird, 4 Ben. (U. S.) 70. Disposal and Ownership of Property. This cites the garnishee to appear in court on the return day of the process, and pending such return day the gar- nishee may not dispose of the property attached, except by delivering it to the marshal, without rendering himself liable to be attached for contempt. Hence the name garnishee, that is, one who is garnished or warned. Bouv. L. Diet. tit. Garnish. The service of a monition by a marshal upon a gar- nishee does not necessarily place the fund out of reach of an officer of a state court. The Olivia A. Carrigan, 7 Fed. Rep. 507. The garnishee may at once deliver up to the marshal the specified credits and effects, and thereafter pay no fur- ther attention to the matter, the mar- shal returning the fact to court and becoming responsible for the credits and effects, or depositing them in the registry of court. A garnishee may always be compelled to answer on oath as to the debts, credits, or effects of the defendant in his hands. Adm. Rule 37; Ben. Adm. 459; Shorey -v. Rennell, Sprague (U. S.) 418. And he may deny the fact that the property so attached belongs to the respondent. He must then appear on the return of process and make oath as to the own- ership of the property and his interest in it, and if there is part that he does not claim, he must pay that part into court orgive a stipulation to abide the event. In default of this he may be attached for contempt. 2. It must be always remembered that as the reason for a foreign at- tachment is simply to compel an appear- ance(see Reed v. Hussey, B. & H. Adm. 525), such attachment can always be avoided by an appearance. As the marshal cannot attach if he can find the defendant to serve him, so if the defendant learns of the proceeding and enters an appearance before his property is attached, no attachment can thereafter be made, and the de- fendant is not obliged to give any stipulation other than the ordinary stipulation in $100 for costs, ex- acted in any suit in personam. But when a foreign attachment issued upon a libel did not rightly go against certain property in the hands of third parties, and such third par- ties might therefore have taken no notice of the libel, but in fact did ap- pear and answer the libel, the court considered the case upon the same footing as if the property had been attached and the claimants had inter- vened in respect thereto. Reed v. Hussey, B. & H. Adm. 525. 260 Mesiie Process. ADMIRALTY. Mesne Process. the defendant's, the garnishee need not appear, but may let the case take its course, and pay over the credits and effects to the marshal, as stated above, or as ordered by the court on final de- cree. But if he denies that the defendant is the true owner, it is his duty to appear on the return of the monition, and so plead. 1 X. MESNE PKOCESS. On the filing of the libel, with proper stipulation for costs, in the office of the clerk, the latter issues, as of course, a writ or order to the marshal, which is called process. This is issued in the name of the President of the United States, tested by the judge of the court, and signed and sealed by the clerk. It is directed to the marshal, and, after setting forth the facts as to the filing of the libel, it directs the marshal to attach and safely keep the said property, if the action be in rem, or to arrest or cite the defendant to answer, or to attach his goods and chattels, if he cannot be found, according to the various prayers in the different kinds of causes.* Duty of Marshal. This process is delivered by the clerk or the proctor for the libellant to the marshal, by whom it is executed ; that is, the marshal serves a citation on the defendant, or attaches his goods, or seizes the res proceeded against. 3 1. This Issue, as to Ownership of the credits and effects, may be either put upon the general calendar of the court, and tried as any other issue is tried, or the matter may take the form of a reference, and be sent to a com- missioner to determine the true owner- ship. The practice is not uniform in this regard, and must depend more or less on circumstances. When the subject-matter is small or the ques- tion little doubtful, a reference would probably be ordered; otherwise where the questions are serious. And, in any case, the judge, on cause shown, will undoubtedly order the case on the general calendar, for hearing in open court. On the determination of this issue, if the court finds that the credits and effects attached are those of the defendant, the latter's default may be entered, and a final decree in favor of the libellant entered as in any case of default. 2. Warrant of Arrest. Adm. Rule 2. But in suits in personam no warrants of arrest either of the person or prop- erty of the defendant shall issue for a sum exceeding $500, except by special order on cause shown. Adm. Rule 7. And see Chiesa v. Conover, 36 Fed. Rep. 334; The Bremena v. Card, 38 Fed. Rep. 144. A warrant of arrest in admiralty may issue on Sunday. Pear- son v. The Alsalfa, 44 Fed. Rep. 358. 3. Adm. Rule 8, 9. In admiralty, service of process is never made by any one other than the marshal and his deputies, unless in a case where the marshal is interested, when the court will appoint some disinterested party to take his place. Rev. Sts. 922. The arrest and detention of a vessel under admiralty process, though the claim prove untenable, does not en- title the owner to damages. Swedish Bark Adolph, 5 Fed. Rep. 114; Kemp Brown, 43 Fed. Rep. 391; Portland Shipping Co. v. The Alex. Gibson, 44 Fed Rep. 371; Henderson v. 300 Tons Ire Ore, 38 Fed. Rep. 36; The Wasco, 53 Fed. Rep. 546. But see Briggs Ex- cursion Co. v. Fleming, 40 Fed. Rep. 593- Filing libel and issuing attachment without seizure are not constructive notice of the pendency of the suit. The Robert Gaskin, 9 Fed. Rep. 62. See Daily v. Doe, 3 Fed. Rep. 903. Destruction of Property Seized under Judicial Process in admiralty, without fault of the debtor, works a payment of the debt to the extent of the value of the property. The Flavilla, 17 Fed. Rep. 399. A Seizure is Necessary to Give the Court Jurisdiction for the purposes of for- feiture. The Washington, 4 Blatchf. (U. S.) 101; The Schooner Silver Spring, i Sprague (U. S.) 551. A valid seizure by the marshal gives 261 Property Exempt from Seizure. ADMIRALTY. Property Exempt from Seizure. XL PROPERTY EXEMPT FROM SEIZURE. Certain property cannot be seized in rem.* Thus property held by a sheriff cannot be attached. 8 Nor can property in the hands of a receiver appointed by a state court, without first obtaining permission of such court. 3 Property in the hands of the collector of the port may be seized by service of the monition on the collector, but the marshal cannot take the property into his possession without special order of the court, 4 the collector having the right to first collect the duties ; after which it would be his duty to turn over the surplus to the marshal. As the government does not allow itself to be sued, so its prop- the court jurisdiction, which is not lost by an accidental, fraudulent, or improvident removal of the res from the custody of the marshal. The Rio Grande, 23 Wall. (U. S.) 458. When Defendant is Found and Served in the district, and is not liable to arrest, the court cannot order him to give security under penalty of imprison- ment, but may on motion order his goods attached. Louisiana Ins. Co. v. Nickerson, 2 Lowell (U. S.) 310. One who has Attached a Vessel may be compelled to proceed to an adjudica- tion. Burke v. Trevitt, I Mason (U. S.) 96. Invalid State Attachment. A mar- shal attached a vessel, which was thereafter fraudulently taken out of his possession and the jurisdiction, and attached out of the state court. Held, that the state attachment was invalid; that the original attachment by the marshal held good; and that the federal court of the district into which she had been removed would restore her to the federal court of the district where she had been originally attached. Brig Joseph Gorham, 7 Law Rep. 135. 1. See Moran v. Sturges, 154 U. S. 256. Real Estate is not ordinarily subject to attachment under mesne process in admiralty. Judge Lowell, in Louis- iana Ins. Co. -v. Nickerson, 2 Lowell (U. S.) 311, says : " It [the admiralty] retains from the ancient times of pro- hibitory legislation the inability to at- tach land or any interest therein by process out of the admiralty." If this is the origin of the inability to attach real estate, then, as the admiralty of this country has so largely shaken it- self free from the bonds of the com- mon-law prohibitions, it would seem that the right to attach real estate might now exist. There is no appar- ent reason why land should not be at- tachable as well as goods and chattels. And process on executions in admi- ralty always issues against lands as well as goods and chattels. See Ben. Adm. (3d ed.), 4330. 2. Property in Possession of Sheriff. Taylor v. Carryl, 20 How. (U. S.) 583; The Orpheus 3 Ware (U. S.) 143; The Olivia A. Carrigan, 7 Fed. Rep. 507; The Julia Ann, i Sprague (U. S.) 382. A sheriff desiring to protect his own attachment of a vessel against a seizure by a marshal should apply to the state court for protection, or bring the facts before the federal court by petition, and pray that the marshal be withdrawn, He should not appear in the admiralty suit and set up a claim to the vessel. Steamer Circassian, i Ben. (U. S.) 128. 3. The Red Wing, 14 Fed. Rep. 869; The E. L. Cain, 45 Fed. Rep. 367; The Willamette Valley, 63 Fed. Rep. 130; Moran v. Sturges, 154 U. S. 256. But see Ferryboats Roslyn and Mid- land, 9 Ben. (U. S.) 119; Paxton v. Cunningham, 63 Fed. Rep. 132. Contempt. Unless such permission be obtained, libellant may be called upon by the state court to show cause why he should not be punished for contempt for interference with the officers of that court. When receiver is in a foreign jurisdiction, the per- mission of the foreign court need not be obtained. The Willamette Valley, 62 Fed. Rep. 293. Property in the Hands of an Assignee is not exempt. The James Roy, 59 Fed. Rep. 784; The J. G. Chapman, 62 Id. 939; The City of Frankfort, 62 Id. 1006. 4. Two Hundred and Fifty Tons of Salt, 5 Fed. Rep. 216; U. S. v. One Case of Silk, 4 Ben. (U.S.) 526. 262 Return of Process. ADMIRALTY. Appearance and Default. erty cannot be seized, 1 and the public property of any state, or municipal corporation, such as a police-boat, cannot be attached a And the statutes forbid the libelling of a canal-boat for wages. 3 XII. RETURN OF PROCESS 1. Time for Return. In every case it is the marshal's duty to inform the court of what he has done under the process of the court. For this purpose each court has cer- tain regular days which are called return days, on which the pro- cess issued is returned to the court, with the marshal's indorse- ment as to his action thereunder. 4 In Suits In Personam process is returnable on the next general return day after the filing of the libel, and the same is the case in possessory actions, except that in the latter at least three days should elapse between the filing of the libel and the return, and in such actions the answer should be filed on such return day. 5 2. Contents. The return of the marshal is a statement of what he has done, as, that he has attached the defendant vessel, and has given or not given notice of the claim to any one who may be interested ; or, that he has cited the defendant to answer, or has arrested him. 6 3. Appearance and Default. On the return day the process is called in open court. It is then the duty of the respondent to enter his appearance and file his answer to the libel, or obtain further time in which to answer. If the process is returned by the marshal duly served, and the respondent fails to appear, the libellant may have an order pronouncing him in contumacy and default, and the libel will be adjudged to be taken pro confesso 1. The Siren, 7 Wall. (U. S.) 152; The nan v. Schooner Anna P. Dorr, 4 Fed. Fidelity, 16 Blatch. (U.S.) 569; Two Rep. 459. Hundred and Fifty Tons of Salt, 5 In Suits In Rem two full weeks have Fed. Rep. 216; The F. C. Latrobe, 28 to elapse between the issuing of pro- Fed. Rep. 377. See Schooner Othello, cess and its return. If, therefore, the i Ben. (U. S.) 43. regular return day is Tuesday, and the 2. The Fidelity, 16 Blatchf. (U. S.) libel is filed and process issued on 569; The Protector, 20 Fed. Rep. 207; Wednesday, the process will not be The F. C. Latrobe, 28 Fed. Rep. 377. returned to court until two weeks from But the fact that there is no lien the Tuesday which follows the Wed- against the vessel does not prevent a nesday on which the libel was filed, suit in personam. Id. See Tebo v. 5. In Possessory Suits property will Mayor, 61 Fed. Rep. 692. not ordinarily be released on bail, es- 3. Rev. Sts. 4251. As to what is a pecially when the cause may be put canal-boat, see The Wm. L. Norman, at issue and tried forthwith. Schooner 49 Fed. Rep. 285. Rainbow, i Ben. (U. S.) 40. 4. False Return. When the mar- 6. Alias Process. If the marshal has shal's return is clearly false, the court not been able to find defendant or may set aside all proceedings. Inter- seize the vessel before the return day, national Grain Ceiling Co. v. Dill, 10 he returns that fact, on which libellant Ben. (U.S.) 92. may apply to the court for what is Return as to Attachment. A return called an alias process, which is prac- by the marshal that he has attached a tically a reissuing of the original pro- vessel by delivering a copy of the writ cess to enable the marshal to make to her owner or master does not im- another attempt to serve. See Hardy port any seizure of the vessel. Bren- v. Moore, 4 Fed. Rep. 843. 263 Eeturn of Process. ADMIRALTY. Respondent's Stipulation. against him, and the court will hear the cause ex parte and grant the libellant such relief as may be just. 1 4. Claim. In ordinary suits in personam, where the process is a simple citation to appear and answer, nothing is ordinarily gained by filing a notice of appearance before the return day. But when the goods or the vessel of a defendant have been seized, he may appear at once and file a claim and stipulations* The claim is a sworn statement as to the interest of the claimant in the thing seized, made either by the owner himself, or by an agent of the owner, or one who has some interest in the res. 3 5. Respondent's Stipulation for Costs. Before the claim will be received on file, however, a stipulation for costs must be filed by the respondent. 4 And in suits in personam, where no claim is filed, a stipulation for costs must be filed with respondent's notice of appearance. 5 1. Adm. Rule 29. Rostron v. The Water Witch, 44 Fed. Rep. 95. A decree pro confesso is not final. The Lopez, 43 Fed. Rep. 95. After a default claimant cannot, as matter of right, obtain the release of the property by giving bond under Rev. Sts. sec. 941. Sloop Martha C. Burnite, 10 Ben. (U. S.) 196. But it is not necessary for a respondent to wait until the return day of the pro- cess before entering his appearance. Indeed, in most cases it would be a hardship for one arrested to remain in custody, or one whose vessel or goods have been seized to leave them in the hands of the marshal, until the regular return of the process. A re- spondent arrested may therefore at once give bail, with sureties to appear and abide the event of the suit; or he may appear and claim the property seized if the suit is in rem, and give stipulations to answer any judgment against it, and thereupon his property will be released. And this release may be had at any time on. filing ap- pearance and proper stipulations in the clerk's office on the very day of the attachment, if necessary. On filing stipulations the clerk issues an order to the marshal to release the property. The giving of a stipulation cures any defect in service of the process. The Acadia, Brown Adm. 73. After claim- ant has given a stipulation, a forcible seizure of the vessel by him is not a contempt of court. U. S. v. Towns, 7 Ben. (U. S.) 444. 2. Filing stipulations without claim. See Todd v. Bark Tulchen, 2 Fed. Rep. 600. After appearance and answer, it is too late to move to dismiss the libel because of a misnomer. Mina v. I. & V. Florio S. S. Co., 23 Fed. Rep. 915. 3. Schooner Adeline, 9 Cranch. (U. S.) 286 ; U. S. v. Casks of Wine, i Pet. (U. S.) 547. Claimant, who is. The Two Marys, 12 Fed. Rep. 152 ; Bark Laurens, Abb. Adm. 302. The first step in a defense is to interpose a claim. Who may claim and how. Steamer Spark v. Lee Choi Chum, I Sawy. (U. s.) 713- The Master of a Vessel in a Foreign Fort frequently claims on behalf of his ab- sent owners. And a consul of a for- eign government may claim, on behalf of subjects of his country, a vessel seized as prize. The Bello Corrunes, 6 Wheat. (U. S.) 153 ; The London Packet, i Mason (U. S.) 14 ; Steamer Spark -v. Lee Choi Chum, i Savvy. (U. S.) 713- Contents of Claim. The claim states the interest of the claimant, or the ownership, and that no other person is owner, and if made by an agent, that he is duly authorized thereto by the owner, and if by the master, that he is the lawful bailee thereof for the owner, and should end with a short prayer to the court for permission to defend the suit. (Adm. Rule 26). A claim is a sufficient notice of appearance. 4. See Rawson v. Lyon, 15 Fed. Rep. 831. 5. Adm. Rule 25. This Stipulation is Similar to Libellant's Stipulation filed with the libel, in the sum of two hundred and fifty dol- lars in cases in rem and one hundred dollars in cases in personam, and is signed by the defendant and at least 264 Return of Process. ADMIRALTY. Stipulations for Release. 6. Stipulations for Release. When a defendant has been arrested in a suit in personam or a ship or goods have been attached in a proceeding in rent, and the defendant desires a release, he must give another undertaking in addition to the stipulation for costs. 1 Form of Undertaking. In suits in personam where defendant is arrested, this undertaking is in the form of a bond or stipulation conditioned that the defendant will appear and abide by all orders of the court, interlocutory or final, and pay the money awarded by the final decree rendered therein by the court to which the process is returnable, or by any appellate court. 2 Ordinary Penal Bond. And in suits in personam, where property is attached, and in suits in rem, the undertaking may be an ordinary one surety resident in the district. A non-resident defendant must supply two sureties. An objection that only one surety has signed the stipulation must be seasonably made. The In- fanta, Abb. Adm. 327. 1. In all Proper Cases of Seizure under any statute, the invariable practice of the district court has been to take bonds for the property, on application by claimant. The Brig Alligator, i Gall. (U. S.) 145- Waiver of Defects. The giving of a stipulation for the release of a vessel is a waiver of any defect in the service of the process. The Acadia, Brown Adm. 73. The giving of a stipulation is not necessarily a waiver of the right to deny the legality of the custody of the marshal. Ferryboats Roslyn and Midland, 9 Ben. (U. S ) 119 ; The Berkeley, 58 Fed. Rep. 920. Vessel Never in Custody A stipula- tion for the demand, given under notice of the filing of the libel, is valid though the vessel was never in custody. Id. In Possessory Suits property will not ordinarily be released on bail. Schooner Rainbow, i Ben. (U. S.) 40; Muir v. Brig Brisk, 4 Ben. (U. S.) 252. In Cases of Prize, never before a hearing. See post, XX ; The Diana. 2 Gall. (U. S.) 93. The Owner of Cargo arrested for freight cannot be compelled to give bail for the value of the cargo ; and he has also no right to give bail for freight which he acknowledges to be due. He should therefore pay the freight into court. The Freight Money of Canal- boat Monadnock, 5 Ben. (U. S.) 357. When Goods in a Bonded Warehouse are libelled by the government, the claim- ant is entitled to have them on giving a bond for their value, not in- cluding the amount of duties charge- able on them. Four Cases Silk Rib- bons, i Ben. (U. S.) 214. Taking Proceeds from Registry. A libellant may take proceeds from the registry on giving bonds, when. Bark Archer, 10 Ben. (U. S.) 99. 2. Adm. Rules. A bond to perform the decree of the court means the court which shall finally decide the cause. U. S. v. Schooner Little Charles, i Marsh. (U. S.) 380. A bond executed to the marshal is valid though valuation was not made by commissioners appointed by the court. Id. In a joint and several bond, when one obligor dies, the court will proceed against the survivors, or, at the option of plaintiffs, against the representa- tives of the deceased. Ship Octavia, i Mason (U. S.) 149. Sureties on a bond to appear and abide may sur- render their principal, when. Lane v. Townsend, i Ware (U. S.) 289. But the practice of the admiralty does not admit.of the surrender of the principal in exoneration of bail. Id. ; Cure v. Bullus, Abb. Adm. 555. After judg- ment against a respondent in suit in personam. it is not necessary to take out an execution and have it returned in order to charge the bail. In re Snow, 2 Curt. (U. S.) 485. A bond to secure the appearance of a party to answer a libel in admiralty is to be considered not as a bail bond at com- mon law, but as an admiralty stipula- tion. Lane v. Townsend, i Ware (U. S.) 289. A stipulation by a party ar- rested in admiralty to abide the decree of the court is in proper form, and he cannot be compelled to stipulate to pay the amount decreed against him. Grace v. Evans, 3 Ben. (U. S.) 479. 65 ADMIRALTY. Stipulation for Value. penal bond to the libellant, under seal, to abide the event and pay the judgment, if rendered. But the two customary undertakings to release property seized in an admiralty cause are the stipulation for value, and the bond to the marshal under the act of 1847.* 7. The Stipulation for Value is an instrument reciting the insti- tution of the suit and the appearance and claim of the defendant ; it is executed by the defendant and sureties, and contains the consent of the sureties that in case of default or contumacy on the part of the defendant or the sureties, execution to the amount of the stipulation may issue against their goods, chattels, and lands. 8 The Amount of this stipulation is supposed to be the full value of the property seized (in a bond to the marshal, double the value), but it is often a matter of agreement between the parties to the suit or their proctors. Thus, if a valuable vessel is libelled for a small claim, the libellant's proctors will usually agree that, for the purposes of that suit, the value of the vessel may be considered to be an amount sufficient to cover libellant's claim and interest. 3 1. Adm. Rule 4. See Pope v. Seck- worth, 46 Fed. Rep. 858. Rev. Sts. sec. 941 ; Poland v . Cargo of Brig Spar- ton, i Ware (U. S.) 134. A release bond given on seizure under an invalid warrant of arrest is not a waiver of the illegality nor an appearance in the suit. The Berkeley, 58 Fed. Rep. 920. Substitutes for Property. Bonds given in admiralty on release of prop- erty seized are substitutes for the prop- erty. The Palmyra, 12 Wheat. (U. S.) i; Steamer Webb, 14 Wall. (U. S.)4o6; The Wanata, 95 U. S. 611; U. S. v. Ames, 99 U. S. 35. When a vessel is re- leased on a bond, her subsequent loss and the filing of a petition in limita- tion of liability is no defense to the li- bel. The Percy Birdsall, 55 Fed. Rep. 683. 2. Amount of Stipulation. A surety cannot be compelled to pay more than the amount expressed in his stipula- tion. The Wanata, 95 U. S. 600; The Ann Caroline, 2 Wall. (U. S.) 538; Steamer Webb, 14 Wall. (U. S.) 406; Jaycox v. Chapman, 10 Ben. (U. S.) 517. A release bond is not rendered invalid by the omission of the specified sum to be paid in case of a default. The Haytian Republic, 59 Fed. Rep. 476. Interest. Agents or sureties are re- sponsible as principals for interest on their stipulations when they appear and defend the suit. The Wanata, 95 U. S. 612; The Maggie J. Smith, 123 U.S. 356; The Maggie M., 33 Fed. Rep. 591. When obligors in a stipulation will be liable for interest. Steam Propeller Belle, 5 Ben. (U. S.) 57. Under a stipulation for value the ob- ligors are not liable for interest on the sum stipulated, except on default in complying with the terms of the stipu- lation. The Sydney, 47 Fed. Rep. 260. Condition of Bond. Under Adm. Rule 4, which provides that an attachment may be dissolved on defendant giv- ing bond to abide by all orders of court, and pay the amount awarded by final decree, attached property can- not be released on bond conditioned for payment of the value of the prop- erty released, when such property is less than the debt sued for. Pope v. Seckworth, 46 Fed. Rep. 858. Waiver and Appearance. The sub- mission of the sureties to the jurisdic- tion of the court is not a waiver of the irregularity and does not operate as an appearance in the suit, when the vessel was seized and the stipulation given under an invalid warrant of ar- rest. The Berkeley, 58 Fed. Rep. 920. 3. See The Monarch, 30 Fed. Rep. 283. But when the value is fixed by consent, a motion to reduce the amount of the stipulation cannot be made. Otherwise when the amount has been fixed by the court or under Rev. Sts. 941. Id. Or the court will fix the amount when claimant contends that the amount exacted by libellant is ex- orbitant. 266 Return of Process. ADMIRALTY. Stipulation for Value. On the other hand, when the claim is equal to or greater than the value of the vessel, the claimant will be unwilling to give a stipulation for more than her value, beyond which value he cannot be held liable. 1 Appraisal. It is therefore necessary to ascertain the actual value of the vessel, and this is done by appraisal (Adm. Rule n.) Claimant applies to the court, on notice to libellant, setting forth by affidavit the claim against his vessel, and prays for the appoint- ment of appraisers, which appointment is usually a matter of course, the libellant merely being heard as to their disinterested- ness or competency. Having appraised the vessel, the appraisers file a report of the appraisal in the clerk's office, and the stipula- tion for value is given in that amount. It is filed in the clerk's office.* Bond to Marshal Form. A bond to the marshal is in the form of a penal bond, under seal, to the marshal of the district, in double the amount of the libellant's claim, reciting the filing of the libel, and the filing of the claim and stipulation for costs, and conditioned that the claimant shall abide by and perform the decree of the court, or otherwise the sureties will be answerable. The sureties justify in double the amount of the bond. 3 Judgment Against Sureties. On a bond to the marshal, summary judgment may be entered by the libellant against the sureties on the rendering of the decree ; on a stipulation for value, the sureties are ordinarily called upon to show cause within four days why execution should not issue against them. 4 1. Laws 1884, ch. 121, sec. 18; 23815. from custody by giving a bond under at L. p. ST, The Wanata, 95 U. S. 600. section 94, Rev. Sts., after a default When the claims exceed the value of on return of process. Sloop Martha the vessel, claimant may obtain a re- C. Burnite, 10 Ben. (U. S.) 196. lease on giving a stipulation for the Filing and Approval. Although value of the vessel, without including drawn to the marshal, this bond is the freight. Bark Vivid, 3 Ben. (U. S.) filed in the office of the clerk, like the 397. stipulation for value, and, unlike a 2. After Appraisal and the giving of a stipulation for value, may be approved stipulation claimant cannot insist that by the collector of customs of the the value of the ship is less than the port, as well as by the court. sum named in the stipulation. Ship 4. The Belgenland, 108 U. S. 153; Virgin v. Vyfhius, 8 Pet. (U. S.) 538. The Sydney, 47 Fed. Rep. 260. 3. See The City of Hartford, ii Fed. Rights and Liabilties of Sureties. Rep. 89. Under such a bond a decree Sureties who have paid a judgment may be entered against the obligors against their principal are subrogated for libellant's claim and costs, pro- to the rights of the original libellant. vided the decree does not exceed the Carroll v. Steamboat T. P. Leathers, amount of the penalty of the bond. Newb. Adm. 432; The Madgie, 31 Fed. The Madgie, 31 Fed. Rep. 926. Rep. 926. See Johnson v. Chicago, Additional Stipulation. After a bond etc., Elevator Co., 119 U. S. 388; The to the marshal has been given, the Baltic, B. & H. Adm. 149. libellant has no power to exact any A court of admiralty cannot compel additional stipulation. Gaines v. a surety to appear and submit to an Travis, Abb. Adm. 297. examination touching his property. Release on Bond After Default. It The Blanche Page, i Blatchf. (U. S.)i. seems that a party cannot, as matter Nor can it sequestrate his property, of right, obtain the release of a vessel Id. Sureties cannot be arrested on 267 Keturn of Process. ADMIRALTY. Tender. Increasing or Keducing Security. And in all cases of stipulations in admiralty and maritime causes any party may apply to the court, on cause shown, for greater or further security -, 1 or the claimant, on showing that libellant's claim is exaggerated, or a respondent, arrested in a suit in personam, may apply to have the amount reduced. 2 The whole matter is in the discretion of the court. 3 8. Sale of Perishable Property. Pending the return of process, the owner may desire to have it sold, as, for example, in case of attachment of a cargo of ice or fruit. 4 In such case, on proper proof of the liability of the property to deterioration, the court will always order the sale of the property and the deposit of the proceeds in the registry of court. 5 9. Tender. Before suit is brought, respondent may tender what he admits to be due. If this be refused, and suit is thereafter brought, the amount tendered should be deposited in court, and the fact of the tender alleged in the answer. 6 After suit execution in an admiralty cause in New York. The Kentucky, 4 Blatchf. (U. S.) 448 ; The Blanche Page, 16 Blatchf. (U. S.) i. But see Sawyer v. Oakman, n Blatchf. (U. S.) 65. The rules of the Supreme Court place a principal and his surety on bond or stipulation given on arrest in per- sonam on the same footing; and sum- mary process of execution may is- sue against the surety in the same way and at the same time as against the principal, and consequently with- out an order to show cause. Holmes v. Dodge, Abb. Adm. 60. Justification of Sureties. The sureties on any bond or stipulation, even the stipulation for costs, may be com- pelled to justify on demand therefor served on the proctors for the party giving the stipulation; in common practice the approval of the sufficiency of the sureties is usually sought from the libellant's proctor before the stipu- lations are filed. If libellant's . . . proctor or the court have approved the stipulation, the clerk, on the filing of the same, will at once issue a direction to the marshal to release the property. See The Jeanie Landles, 17 Fed. Rep. 91. The addition of a new party, or any amendment which the court may make without affecting the identity of the suit, will not affect the under- taking of a surety. The Maggie Jones, i Flip. (U. S.) 635. If libellant will not approve the stip- ulation, the sureties may be taken be- fore the judge, and his approval ob- tained. 1. The Virgo, 13 Blatchf. (U.S.) 255; The City of Hartford, n Fed. Rep. 89. 2. Adm. Rule 6. But the fact that a libellant seems to have more than sufficient security, though having only the customary security, is no reason for depriving him of a part of it. Bark Archer, 9 Ben. (U. S.) 455. 3. Eeseizure of Property. The Union, 4 Blatchf. (U. S.) 90. See Steamship Jewess, i Ben. (U. S.) 21. Property which has once been arrested in ad- miralty and fairly discharged on stipulation cannot be arrested again in admiralty for the same cause of action. The White Squall, 4 Blatchf. (U. S.) 103; The Thales, 3 Ben. (U. S.) 327, 10 Blatchf. (U. S.) 203; The Old Concord, Brown Adm. 270; The City of Hartford, u Fed. Rep. 89. But on cause shown, as fraud, or the total failure of the sure- ties, the court can order the reseizure of a vessel. The Favorite, 2 Flip. (U. S.) 86. This should be by an order to the marshal made on affidavits show- ing cause therefor, directing him to take the vessel back into his custody under the original process, not by the issuing of a new process. But a regu- larly executed stipulation is prima fade good. The Snap, 24 Fed. Rep. 510. 4. Ship Nathaniel Hooper, 3 Sumn. (U. S.) 542; The Cheshire, Blatchf. P. C. 165. Property whose value is be- ing destroyed by charges during its custody, as storage charges, may be sold as perishable property. 5. Adm. Rule 10. 6. Answer should specify how much 268 Respondent's Pleadings. ADMIRALTY. Exceptions to Libel. brought, respondent may, without actually offering the cash to the libellant, pay what he admits to be due into court, adding thereto the libellant's costs to the date of the tender. If thereafter the libellant does not recover a decree for a larger sum than the tender, he must pay costs. 1 10. Sale on Return Publication. On the return of process, regu- larly executed, property of any kind which has been attached may be sold to satisfy the libellant's claim, unless the respondent has appeared and secured the claim in some way. 8 Property is sold at auction, by the marshal, after notice given to all parties known to be interested and after publication of the notice of sale in a newspaper designated by the court. 3 XIII. RESPONDENT'S PLEADINGS. The process is now returned and the respondent has appeared in court, and has filed security for libellant's claim, and has obtained the release of his property. His first pleading may be an exception to the libel. 1. Exceptions to Libel. Exceptions are of two kinds. The peremptory exception is in one respect like a demurrer at com- mon law. 4 If an absolute bar to the suit appears on the face of is tendered on claim, and how much on costs. The Good Hope, 40 Fed. Rep. 608. 1. Payment of money into court is an unconditional admission that such an amount is due. Ye Seng Co. v. Corbitt, 9 Fed. Rep. 423. One has no right to give bail for freight moneys which he admits to be due, and he should pay the same into court on attachment of cargo for the freight; but he cannot be compelled to give bail for the cargo. Freight Money of Canal-boat Monadnock, 5 Ben. (U. S.) 357. A party who is not responsible for refusal of a tender should not pay costs. The Dennis Valentine, 47 Fed. Rep. 664, affirmed 57 Fed. Rep. 398. Withdrawal of Money. The libellant is usually allowed on motion and order to withdraw from court the money deposited as a tender by the defendant, or a portion thereof, even though he continue to press the suit. Such a withdrawal is not necessarily regarded as an acceptance of the ten- der. Higbie v. Tomatoes, 59 Fed. Rep. 783. 2. Adm. Rule 29. 3. But notice by publication is not always a necessity. Daily v. Doe, 3 Fed. Rep. 903. Order of Publication Short Order. If it is probable from the first that the property will have to be sold, as in a case of salvage against a derelict, or the attachment of the property of an insolvent, an order of publication should be obtained on filing the libel, and the publication should be made daily until the return of the process. And in any case the ordinary period of publication is two weeks. But this period of publication may be reduced on cause shown, and a short order of publication may be had on application to the court. This is ordinarily a publication of the notice for six days, but the court may reduce even this time in its discretion. The desirability of obtaining an order for immediate sale on taking a default on return of process, and hence of having the publication completed by that day, renders the short order convenient when, for any reason, the publication has not been begun immediately on the filing of the libel. 4. Brig Attila, Crabbe (U. S.) 326. See Prince S.S. Co. v. Lehman, 39 Fed. Rep. 704. Exceptions in admi- ralty have the effect of a demurrer, and also that of a motion to make more definite and certain. Steamboat Transport, i Ben. (U. S.) 86. Must State the Insufficiency. An ex- ception that a libel does not state facts sufficient to constitute a cause of ac- tion is not well taken unless it states in what the insufficiency consists. The Active, Deady (U. S.) 165; The Sea Gull, Chase's Dec. (U. S.) 145; A Raft of Spars, Abb. Adm. 291; Reed v. Hussey, B. & H. Adra. 525. 269 Respondent's Pleadings. ADMIRALTY. Petition under Rule 59. the libel, the respondent may dismiss the suit by peremptory exception. 1 The Dilatory Exception is simply a preliminary objection, or an objection to the form of the libel. 2 Amendment of Libel. If the libellant agrees to the exception, he will file his amended libel within a reasonable time. 3 If he re- fuses to amend, either party may notice the hearing of the excep- tions before the court, who examines the matter and orders the libel amended or not, according to justice. 4 Other Exceptions. Exceptions may be also taken to a pleading for surplusage, irrelevancy, impertinence, or scandal, and the ex- ceptionable matter maybe stricken from the pleading if the court so orders. 5 2. Petition under Rule 59. Another pleading which may now be made by a defendant is a petition under admiralty rule 59. 6 In collision cases it not infrequently happens that only one of the colliding vessels is sued. 7 This objection may be taken ad- 1. What May be Set Tip. If respond- ent is willing to rely on one matter of bar, as lack of jurisdiction, payment, etc., he may set that up by peremp- tory exception, though the subject- matter may not appear on the face of the libel. And facts judicially known to the court may be brought up by exceptive allegation when they do not appear in the libel. The Seminole, 42 Fed. Rep. 924. When to be Taken. Exceptions in matters of substance must be taken before joining issue and filing cross- bill, or else the exception will be held to be too late. The Fifeshire, n Fed. Rep. 743 ; Ben Adm. 468 ; Betts Pr. p. 48. Practice to Unite with Answer. It is also quite common practice to unite exceptions with an answer on the merits, the pleading being entitled the Exceptions and Answer of the claim- ant or respondent, and in such case the exceptions are heard when the case comes up regularly for trial. 2. As when a defendant excepts to a collision libel because it does not state the direction of the wind or the tide, the courses or lights of the ships, or any of the matters as to which the defendant is entitled to be fully informed of the libellant's claim before answering. See Adm. Rule 28. Certain Logs of Mahogany, 2 Sumn. (U. S.) 589- 3. New York. In the Southern and Eastern Districts of New York, within four days after notice of his submit- ting. D. C. Rule 44. 4. Court may Impose Terms. The court, on granting leave to the libel- lant to amend in matter of form, may impose terms. 5. Exceptions for insufficiency and impertinence should not be taken to the same matter. The Whistler, 13 Fed. Rep. 295. Exceptions to plead- ings in collision cases are permitted only when made in good faith. The Intrepid, 42 Fed. Rep. 185. Admiralty Rule 36 provides for a ref- erence of such matters to a commis- sioner to report his findings thereon, which are subject to the approval of the court. It is common practice, however, for the court to hear the ex- ceptions and pass upon them in the first instance. 6. This rule grew out of the case of The Hudson, 15 Fed. Rep. 162. See Copp v. DeCastro, 8 Ben. (U. S.) 321. It is noticed here because the proceeding under it should be taken before or at the time of filing the an- swer, although the court may for cause shown allow it to be made later. 7. Thus an owner of cargo damaged by reason of a collision may sue only the boat which was carrying the cargo on the breach of its carrier's contract, while the owner of such boat may re- gard the other vessel in collision as solely responsible for the accident. Or the owner of a boat in tow of tug A may be run into by tug B, and tug 270 Respondent's Pleadings. ADMIRALTY. Answer. vantage of by a petition setting forth the facts. 1 other Cases Than Collision. The 5Qth rule specifies only cases of collision, but the courts have enlarged it to take in cases of dam- age arising from other causes. 2 3. Answer Time of Filing. On the return day of process, or within such further time as may be allowed by the court, or granted by libeMant's proctor, the respondent files in the clerk's office his answer to the libel. 3 Contents. This, like the libel, is addressed to the judge by name and titles. It describes itself as the answer to a certain specified libel, and replies in specific paragraphs to the various allegations of the libel, sets up any affirmative defence, and concludes with the general prayer for relief that the libel may be dismissed with costs. 4 B alone be libelled. But the owner of B may think that the fault for the collision lies with A alone. In such cases proceedings under the sgth rule are proper. 1. The owner of such vessel may thereupon file a petition setting forth the facts of the collision, and the fact that the suit is brought against his boat alone, and alleging that, for rea- sons specified, another vessel or some other party is wholly or partially li- able for the damage, and may there- upon pray that the latter vessel or her owner, or any other party liable, may be made codefendant with his own vessel in the original suit of the dam- aged boat. This petition is filed in the clerk's office, with a stipulation by pe- titioner consenting to pay to the libel- lant, or any claimant or new party brought in by virtue of process under such petition, all such costs, damages, and expenses as shall be awarded against the petitioner by the court. Process will thereupon issue, and the new party- be summoned into court and compelled to give security as though it or he were the only party proceeded against. Petitioner must also answer the original libel, and the new party brought in must answer the petition ; and the cause proceeds as though the original libel had been filed against both vessels. The Green- ville, 58 Fed. Rep. 805. Costs. But if the vessel originally proceeded against is held liable and the vessel brought in is dismissed, the costs of such vessel are taxed against the petitioner. The Waverley, 42 Fed. Rep. 188 ; The Brothers, 30 Fed. Rep. 75- 2. The City of Lincoln, 25 Fed. Rep. 835; The Alert, 40 Fed. Rep. 836. 3. Adm. Rule 27; The Dictator. 30 Fed. Rep. 699; Virginia Home Ins. Co. v. Sundberg, 54 Fed. Rep. 389; The City of Salem, 7 Sawy. (U. S.) 477. As to new matter in answer, see The Whistler, 8 Sawy. (U. S.) 233, 13 Fed. Rep. 295. Excessive formality is not required. Schooner Navarro, Ok. Adm. 127. 4. Requisites and Sufficiency of Answers. Answer must be full, ex- plicit, and distinct. The Commander- in-Chief, i Wall. (U. S.) 43; Propeller Sun, i Biss. (U. S.) 373; Schooner Bos- ton, i Sumn. (U. S.) 328. Proof must correspond with allegations. The Washington Irving, Abb. Adm. 336. Answer which neither admits nor de- nies a material allegation is insuffi- cient. The Elizabeth Frith, B. & H. Adm. 195. Impertinent and irrelevant allegations will be stricken out on motion. The Gustavia, B. & H. Adm. 189. Particular matters of defense must be averred. The William Har- ris, i Ware (U. S.) 367. A deliberate omission to file answer is a waiver of the right to do so. Ferryboats Roslyn and Midland, 9 Ben. (U. S.) 119. An agreement to arbitrate tempo- rarily suspends the necessity for answer. The Nineveh, i Lowell (U. S.) 400. When one part of an answer is in- consistent with another, the court must accept the part most adverse to the claimant. Bark Olbers, 3 Ben. (U. S.) 148. The statute of limitations must be pleaded. Brown v. Jones, 2 Gall. 271 Respondent's Pleadings. ADMIRALTY. Counterclaim. Exceptions and Verification. It may be joined with exceptions to the libel, as indicated above, and it is required to be verified in all cases in which the libel must be verified, and in a similar manner. 1 New Facts Alleged. When the answer alleges new facts, these are considered as denied, and no replication is allowed. 2 4. Counterclaim. Cross-Libel. The respondent may set up in his answer any matter of recoupment or counterclaim arising out of the same cause of action as is set up in the libel, 3 but the general nah M. Johnson, Blatchf. P. C. 97. All the answer required in prize is a brief assertion that the property is not liable to condemnation and forfeiture. The Lynchburg, Blatchf. P. C. 3. Answer as Evidence. Cushman v. Ryan, i Story (U. S.) 91; Sherwood v. Hall, 3 Sumn. (U. S.) 127; Steamboat H. D. Bacon, Newb. Adm. 274; The Santa Claus, Olc. Adm. 428. Objections. An answer should be ob- jected to as insufficient before taking testimony. The Rocket, i Biss. (U. S.) 354; The California, i Sawy. (U. S.) 463- Separate Answers by different defend- ants must be supported each by its own proof. Gardner v. Bibbins, B. & H. Adm. 356. 1. Adm. Rule 27; see Coffin -v. Jenkins, 3 Story (U. S.) 108; Gammell v. Skinner, 2 Gall. (U.S.) 45; The Infanta, Abb. Adm. 265. 2. Adm. Rule 51 ; Moore v. The Robi- lant, 42 Fed. Rep. 162. The evidence of two witnesses is not necessary in admiralty to overcome an answer under oath. Jay v. Almy, i Woodb. & M. (U. S.) 262. On the submission of a cause on the pleadings, new mat- ter in the answer, or general denials, must be wholly disregarded, except so far as they may be admissions against interest. The River Mersey, 48 Fed. Rep. 686. 3. Dupont de Nemours v. Vance, 19 How. (U. S.) 162; The C. B. Sanford, 22 Fed. Rep. 863; The Zouave, 29 Fed. Rep. 296; The Sapphire, 18 Wall. (U. S.) 51 ; The Dove, 91 U. S. 383; O'Brien v. 1614 Bags of Guano, 48 Fed. Rep. 726. See The City of New Bedford, 20 Fed. Rep. 57; White v. The Ranier, 45 Fed. Rep. 773. Although courts of admiralty do not generally take notice of set-offs, the fact that a respondent has claims against the libellant which might properly be allowed in other courts by way of set-off does not oust the jurisdiction of an admiralty court. Dexter v. Munroe, 2 Sprague (U. S.) (U. S.) 477. Also the defence of stale claim. The Platina, 21 Law Rep. (U. S.) 397- It is sufficient to aver a release with- out setting out the particulars of the release. The Western Metropolis, 2 Ben. (U. S.) 212. The answer need not respond to mere narrative- statements. Brig Al- debaran, Olc. Adm. 130. Causes of action may be severed and judgment rendered for claim admitted to be due. Larrinaga v. Two Thou- sand Bags of Sugar, 40 Fed. Rep. 507. An allegation that respondent is "ig- norant " of an allegation of the libel is, it seems, sufficient. The City of Salem, 10 Fed. Rep. 843. All allegations in a libel not denied by the answer are not to be taken as true; but when the answer is silent as to facts in the libel supposed to be peculiarly within the respondent's knowledge, it is within the court's discretion to take the fact pro confesso. Campbell v. Steamer Uncle Sam, McAll. (U. S.) 77. It is not proper practice to make an answer in a collision case operate by agreement as a cross-libel. Ward v. Chamberlain, 21 How. (U. S.) 572. A respondent cannot change his ground and rely on a defense not set up in his answer. Turner v. Ship Black Warrior, McAll. (U. S.) 181. The fact that a material allegation of a libel was not denied in the origi- nal answer, although it was denied in an amendment to such answer, may be taken into account by the court, if there is a conflict of testimony on the fact averred. Steamboat Empire State, i Ben. (U.S.) 57. One may refuse to answer an alle- gation of the libel on the ground that such answer will subject it to a for- feiture or penalty. Pollock v. Steam- boat Laura, 5 Fed. Rep. 133. In Prize Cases the answer should set forth specifically the owner of the ves- sel, the place of her outfit, and the course of her employment. The Han- 272 Respondent's Pleadings. ADMIRALTY. Counterclaim. practice is to file a cross-libel. 1 When Cross-Libel Necessary. If the respondent desire to obtain damages in excess of those claimed by libellant, a cross-libel is necessary, as the court cannot award any such excess to respondent on the answer alone. 8 Security. When such a cross-libel is filed, the respondents, i.e. the original libellants, must give security in the usual amount and form unless the court shall otherwise direct ; and all proceedings on the original libel will be stayed until such security is given. 3 39. A defendant in a libel for freight may claim by way of recoupment that the goods carried were damaged by the libellant's negligence. Such coun- terclaim may also be set up by cross- libel. Snow v. Carruth, 9 Law Rep. N. S. 198. But no excess can be recovered without a cross-libel. Snow v. Car- ruth, i Sprague (U. S.) 324. No set- off is allowable on a libel for seaman's wages. Bains v. Schooner James & Catherine, Baldw. (U. S.) 544. 1. On What Founded. A cross-libel must be founded on a claim arising out of the same cause of action as the original libel. Cro'well v. The Theresa Wolf, 4 Fed. Rep. 152; Maxwell v. The Powell, i Woods (U. S.) 99; Nichols v. Tremlett, i Sprague (U. S.) 361; Snow v. Carruth, I Sprague (U. S.) 324; The Ping-On v. Blethen, II Fed. Rep. 607; Vianello v. The Credit Lyonnais, 15 Fed. Rep. 637; Ward v. Chamberlain, 21 How. (U. S.) 572. When Cross-Libel Not Necessary. See Brooklyn, etc., Ferry Co. v. The Morrisania, 35 Fed. Rep. 558. Notice of Filing. Libellant's proctor cannot be deemed the agent of the libellant to receive notice of the filing of a cross-libel. But if the libellant in the original libel is out of the juris- diction, the court may order a stay. Nichols v. Tremlett, i Sprague (U. S.) 365. Substituted service of monition on cross-libel. The Eliza Lines, 61 Fed. Rep. 308. Dismissal of Libel. On dismissal of a libel, a cross-libel not so connected with the subject-matter of the libel as to be maintainable must also be dis- missed. Kemp v. Brown, 43 Fed. Rep. 391., 2. Snow v. Carruth, i Sprague (U. S.) 324; Kennedys. Dodge, i Ben. (U. S.) 311; Erbert v. Schooner Reuben Dowd, 3 Fed. Rep. 520; Willard v. Dorr, 3 Mason (U. S.) 161. See Bains v. Schooner James & Catherine, Baldw. (U. S.) 544; Ward v. Chamberlain, 21 How. (U. S.)572; The Nadia, 18 Fed. Rep. 729; The Ciampa Emelia, 39 Fed. Rep. 126; Southwestern Transp. Co. z. Pittsburg Coal Co., 42 Fed. Rep. 920. 3. Adm. Rule 53. Rule 46 of the Southern and Eastern Districts of New York is as follows: "In suits in rent in collision cases, where one of the colliding vessels shall be wholly lost, so that no cross-libel against her could be maintained, the defendant, if he shall desire to recoup or offset any damage to his own vessel in case it shall be determined on the trial that the collision occurred through the fault of both vessels, must in his an- swer state the facts and his own dam- ages, in like manner as upon filing a cross-libel ; and such statement of dam- age shall be without prejudice to any defense he may make that the colli- sion was wholly the fault of the other vessel." See Steamer Bristol, 4 Ben. (U. S.) 55; The Toledo, Brown Adm. 445; Vianello v. The Credit Lyonnais, 15 Fed. Rep. 637; Empresa Maritima a Vapor v. North & South American Steam Nav. Co., 16 Fed. Rep. 502; Compagnie Universelle du Canal In- teroceanique v. Belloni, 45 Fed. Rep. 587; The Electron, 48 Fed. Rep. 689. The fifty-third rule, requiring re- spondents in a cross-libel to give secu- rity, applies to suits in rem as well as to suits in personam. The Toledo, Brown Adm. 445. Respondent on a cross-libel may be compelled to give security when the parties plaintiff were not parties of record in the original suit, provided the proceeding is really and practically a cross-libel. The George H. Parker, i Flip. (U. S.) 606. Original Suit. It is not essential to file a cross-libel if defendant in origi- nal suit desires to proceed independ- ently. Brooklyn, etc. Ferry Co. z/ The Morrisania, 35 Fed. Rep. 558. i Encyc. PI. &.Pr. 18. 273 Issue. ADMIRALTY. Trial. XIV. ISSUE. On the filing of the answer with the clerk, the cause, in certain districts, is at issue without further proceedings by either party, and will come up in its turn on the regular calen- dar, or be set down for hearing on a particular date by the court. In other districts the cause is not placed on the calendar until a note of issue is filed with the clerk, and a calendar fee paid. 1 XV. TRIAL Method of Trial. In seme districts the court never sees the witnesses. As soon as the cause is at issue, an order of course is entered that the evidence in the cause be taken, and one of the standing commissioners of the court is usually appointed to take down the testimony. 2 And not until it is all written down is the cause submitted to the court, the pleadings and evidence being read to the court by the advocates, and the cause thereupon summed up and submitted on written briefs. In otheh districts the witnesses are present in court. The cause is opened by the reading of the libel by the advocate for the libellant, fol- lowed by the reading of the answer for the respondent. The libellant then calls his witnesses and the respondent his, and, the evidence being all in, the cause is summed up. A difference between the ordinary trial practice in summing up a case, and the summing up of an admiralty cause, is that in the latter the libellant has the right to open the argument, and when the defend- ant has presented his side of the case the libellant has the right to reply and thus conclude the summing up. There is no non- suit in achniralty, the court always hearing the defendant's case, or requiring him to rest without putting in evidence ; and, in cases of collision, the libellant is always bound to make out a prima-facie case of negligence in the vessel libelled. 3 Court Reserving Decision. Admiralty causes of any importance are rarely decided by the court at once. In perhaps no class of cases is a careful study of the evidence so necessary in order to reach a just decision. 4 At the close of the argument, therefore, the 1. Note of Issue. The note of issue Steam-tug L. P. Dayton, 4 Fed. Rep. is a mere statement of the title of the 134, 120 U. S. 337; The Honora Carr, cause, the various proctors, and the 31 Fed. Rep. 842; The Gibson, 35 Fed. date of issue, with frequently but not Rep. 333. necessarily a statement of the nature 4. New Trial Rehearing, etc. The of the suit, as that it is of collision, or granting of a new trial in admiralty is on. contract, or for damage to cargo, practically unknown. Even a rehear- etc. ing and the introduction of further Delay in Bringing Cause to Hearing. evidence, after decision once had, is Delay in bringing a cause to hearing unusual, though it is of course within after issue joined is no ground for dis- the power of the court. The Vader- missing the libel. The Mariel, 6 Fed. land, 19 Fed. Rep. 527; Mainwaring Rep. 831. v. Bark Carrie Delap, I Fed. Rep. 880. 2. Reason for Reference. Under Adm. See Burdett v. Williams, 29 Fed. Rep. Rule 44, the District Court may refer 542; The Havilah, 39 Fed. Rep. 333; any cause to a commissioner to take Hatch v. The Newport, 44 Fed. Rep. testimony without assigning any spe- 300; The Newport, 38 Fed. Rep. 669. cial reason for the reference. The A motion for a rehearing should be Wavelet, 25 Fed. Rep. 733. made at the same term in which final 3. Method of Procedure. McNally v. decree was rendered. The Comfort, 274 Interlocutory Decree ADMIRALTY. and Reference. court usually takes the papers and in due course renders its decision. 1 XVI. INTERLOCUTORY DECREE AND REFERENCE i. Generally. The court does not act as assessor of damages. When the amount claimed in the libel is a definite amount, or easy of ascertainment, the court may pronounce for a definite amount. Usually, though, the matter is referred to a commissioner. 2 The libellant, there- fore, enters an interlocutory decree and order of reference. This is a decree reciting the suit and the submission of it to the court, and ordering, adjudging, and decreeing that the libellant recover of the ship and its sureties, or of the respondent, the damages sustained by libellant by reason of the matters and things in the libel alleged, and further ordering that the matter be referred to a certain commissioner to ascertain the amount of the libellant's damage and report thereon to the court. A copy of this decree is served on the respondent, and a certi- fied copy delivered to the commissioner named. Thereafter a no- tice of the time and place of the reference, signed by the com- missioner, is served upon the respondent, and at the appointed time the libellant, with his witnesses, appears before the commis- sioner and gives evidence as to his damages. 3 32 Fed. Rep. 327; The Madge, 31 Fed. Rep. 926; The Annex No. 3, 38 Fed. Rep. 620; The Oriental, 2 Flip. (U.S.) 6. The rule that a rehearing may not be had after the term at which the cause was originally decided, except upon a showing of fraud, applies only to a direct proceeding in the same cause, and does not affect a proceeding to review the original suit. Jackson v. Munks, 58 Fed. Rep. 596; Snow v. Ed- wards, 2 Lowell (U. S.)273; Northwest- ern Car Co.z/.Hopkins,4 Biss.(U.S.) 51. 1. The Judgment. If the decision be in favor of the defendant, the judg- ment will be that the libel be dis- missed, with or without costs, and defendant taxes his costs, as referred to hereafter, and enters a final decree that the libel be dismissed. If the de- cision is in favor of the libellant, then the matter is usually referred to a commissioner. 2. Who Acts as Referee. In a colli- sion case, for example, where the dam- ages may consist of hundreds of items, and in other cases, in fact, in admi- ralty causes generally, the clerk of the court, or one of the United States commissioners, acts as a referee to as- certain the exact amount of the libel- lant's damage. 3. Proceedings before Commissioner. \ reference before a commissioner proceeds like an ordinary trial; ob- jections to evidence are passed upon by the commissioner at the time of of- fering them, and are afterwards re- viewable by the court. Ship E. C. Scranton, 2 Ben. (U. S.) 81; Brigantine Beaver, 8 Ben. (U. S.) 594. Either party, however, is at liberty to insist that the court pass upon the question objected to instanter and before the continuance of the reference. This is the proper method of procedure when objection is made to the method of the commissioner in ascertaining the damages. The E. C. Scranton, 4 Ben. (U.S.) 125; Schooner Transit, 4 Ben. (U.S.) 138; Brigantine Beaver, 8 Ben. (U. S.) 594. The reference being then adjourned, the commissioner will certify to the court the question objected to, with his ruling thereon, and his reasons for the ruling, if he so desires, and the matter may be brought before the court, on notice, on any motion day, or according to the practice of the particular district, and having been passed upon by the court, the reference proceeds. At the close of the libel- lant's evidence, the defendant offers his evidence tending to reduce the claim of the libellant, and the matter will then be summed up and submitted to the commissioner. 275 Taxation of Costs. ADMIRAL TY. Final Decree, What is. Commissioner's Eeport. In due time the commissioner makes his report, which, with the evidence and exhibits, is filed in the office of the clerk. 1 2. Exceptions to Report. Either party may except to the com- missioner's report. The exceptions should state particularly the ground of the exception; 2 and they may be brought on for hear- ing before the court on short notice. Exceptions are usually heard on some regular motion day of the court, and are argued and submitted, with the report, evidence, and exhibits, and the court, either on the argument or at a later date, passes upon them, overruling or allowing them, seriatim. 3 Confirming Report. The exceptions having been finally disposed of, the report is confirmed by the court. And if no exceptions at all have been filed, the report will be confirmed absolute in a reason- able time after notice of the filing of the report has been given the other side. 4 The case is now ready for the taxation of costs and entry of final decree. XVII TAXATION OF COSTS. In some districts the costs are taxed before the final decree is entered, and the amount of them is in- cluded in and forms a part of the amount of the final decree. In other districts the final decree is entered for the damages alone, and the taxed bill is a separate paper to be attached to the decree, the amount of both the decree and the bill of costs being, of course, inserted in the execution, when issued. 5 XVIII. FINAL DECREE, WHAT is. The final decree is an order of court reciting the commencement of the suit, the hearing, the interlocutory decree, the reference to a commissioner, the report, the exceptions, if any were taken, and the action of the court thereon, and finally ordering, adjudging, and decreeing that the libellant recover of the respondent such and such specified sum, 1. Principles on which Damages are disputed point. And the commis- Assessed. The commissioner's report sioner's second report may be excepted should explain the principles on which to in like manner to the first. the damages are assessed. Murray v. 4. Confirmation Nisi and Absolute. In Schooner Charming Betsey, 2 Cranch some districts, a report, on being filed (U. S.) 64. in the office of the clerk, is at once. Adoption by Court. The court will and of course, confirmed nisi, that IF, generally adopt the commissioner's re- confirmed unless exceptions are filed port unless errors are clearly estab- within a specified time; and if no ex- lished by the excepting party. Steam- ceptions are hied within that time, the boat Narragansett, Olc. Adm. 388 ; report is, as matter of course, coi,- Baker v. Ship Potomac, 18 How. Pr. ' firmed absolute. (N. Y.)i85. 5. The Costs are Taxed by the Clcik 2. The Commander-in-Chief , i Wall, after notice to the proctor for the other (U. S.) 43; Schooner Transit, 4 Ben. side, and such taxation is subject to an (U. S.) 138. appeal by either party to the couit. 3. Further Reference. It is quite The taxed bill is filed in the clerk's within the power of the court, and not office. The amount of costs will be infrequently done, to refer the matter considered later. See post, xxvm. again to the commissioner, to take Costs. further evidence in regard to some 276 Final Decree, What is. ADMIRALTY. Final Decree, What is. being the amount of the libellant's damages, costs, and interest to date. 1 Performance by stipulators. It may also contain the order that unless the decree be satisfied or an appeal intervene, the stipulators for value and for claimant's or respondent's costs cause the engage- ment of their stipulations to be performed, or show cause within a certain time why execution should not issue against them, their goods, chattels, and lands/-* On this decree, after the time to 1. Proper Form of Decree for libellant on appeal. Deems v. Albany & C. Line, 14 Blatchf. (U. S.) 474. In Suit for Damages for Personal In- juries, court may make a decree for ex- penses of cure. The Lizzie Frank, 31 Fed. Rep. 477. When Several Libellants have distinct damage interests, decree may be for all for an aggregate sum, and direct a distribution. The City of Alexandria, 44 Fed. Rep. 361. A Decree Pro Confesso is not final. The Lopez, 43 Fed. Rep. 95. Nor is a decree dismissing a libel for want of evidence. The Delaware, 33 Fed. Rep. 589- Interest on Demurrage. Milburn v. Bopo, 57 Fed. Rep. 237; The M. Kalb- fleisch, 59 Fed. Rep. 198. 2. Decree against Principal and Sureties. The decree may be entered against both principal and sureties at the time of its rendition, where a bond to the marshal has been given. The Belgen- land, 108 U. S. 153. Where Damages are Divided between Two Vessels, each being held liable for one-half of libellant's damages, the decree should provide that each pay one-half the damage, to the amount of their respective stipulations, and that if either vessel is unable to pay such half, the balance shall be collected from the other offender. The Ala- bama, 92 U. S. 695 ; The Civilta, 103 U. S. 699; The Virginia Ehrman, 97 U. S. 309 ; The Sterling, 106 U. S. 647; The Washington, 9 Wall. (U. S.) 513. See The Helen R. Cooper, 10 Blatchf. (U. S.)2I2 ; The Eleanora, 17 Blatchf. (U. S.) 88 ; The Shubert v. The Brown,. 45 Fed. Rep. 500. Division of damages where more than two vessels in fault. The Brothers, 2 Biss. (U. S.) 104 ; The Peshtigo, 25 Fed. Rep. 488. See The Anerley, 58 Fed. Rep. 794. The Act of February 13, 1893, 27 Sts. at Large, 445, provides (section 3) that under certain conditions " neither the vessel nor her owner . . . shall be held responsible for loss resulting from faults of navigation." It has been held that this applies only to claims for damage to cargo on board the vessel in fault. The Viola, 59 Fed. Rep. 632; The Berkshire, 59 Fed. Rep. 1007. When in a case of collision, both vessels have been held in fault, the assessment of damages is made as follows : the damages of the two vessels, including personal effects (which are to be treated as part of the vessel) are first to be made even. Either vessel whose cargo has been damaged cannot be charged, directly or indirectly, with any part of the loss suffered by her own cargo, nor can any offset against the carrying vessel's claim for her own damage be made by the other vessel on account of what the latter must pay for the carrying vessel's cargo dam- age; but the claim of the cargo of the carrying vessel must be reduced by the amount which would, before the pas- sage of the above act, have been charged against such carrying vessel, or against the moneys payable to her. The Viola, 60 Fed. Rep. 296. In Cases of Cross-libels for Collision, where both vessels have been damaged, and both are held in fault, the decree should provide that the party suffer- ing the greater damage shall recover one-half the excess of his damage over the damage of the other vessel. Sub- tract the lesser damage from the greater damage, and divide the result by two, and the result will be the amount to be entered in the decree for the vessel suffering the greater dam- age. The North Star, 106 U. S. 18 ; Steamship Oregon, 14 Sawy. (U. S.) 440, 43 Fed. Rep. 62. A Personal Judgment cannot ordi narily be entered against a claimant in a suit in rem unless he has signed the stipulation. Atlantic Ins. Co. v. Alexandre, 16 Fed. Rep. 279. Or on issuing new process, or on a general ap- pearance. The Monte A., 12 Fed. Rep. 331- 277 Appeals. ADMIRALTY. Generally. appeal and the time allowed stipulators to show cause has ex- pired, a summary judgment may be obtained against the defend- ant and his sureties, and an execution issued thereon. XIX. SUMMAKY JUDGMENT AND EXECUTION. On proof by affi- davit, ex parte or on notice to the proctors for the losing party, that the time to appeal has expired and the judgment remains unpaid, the court will enter a summary judgment 1 against the stipulators for the amount of the stipulations, on which execution will issue instantly against the sureties. 2 Sale of Property and Distribution of Proceeds- When, in pursuance of this execution, the marshal has sold the property, 3 he pays the proceeds into the registry of the court, and the clerk, under direction of the court, will satisfy the libellant's decree, or distrib- ute the proceeds if there are several creditors. 4 XX. APPEALS 1. Generally. An appeal can be taken only from final decrees. 5 But when so taken it brings up the whole case for 1. No Necessity for an Action. The ad- miralty stipulations containing agree- ments on the part of the respondent and his sureties that in case of default on the part of the principal, execution may issue against them, their goods, chattels, and lands, there is never any necessity for an action against the sureties on theii stipulation. The Baltic, B. & H. Adm. 149. Marshal's Bonds. This is the case only on bonds to the marshal. In stipulations for value an order is or- dinarily made calling on the sureties to show cause in four days why execu- tion should not issue against them, their goods, chattels, and lands; and if no cause is shown, execution issues as of course. And see The Sydney, 47 Fed. Rep. 260; Adm. Rule 21. See The Blanche Page, 16 Blatchf. (U. S.) I. 2. Execution. The execution is in the nature of a. fieri facias, command- ing the marshal or his deputy to levy and collect the amount of the judg- ment out of the goods and chattels, lands and tenements, or other real estate of the defendant or his stipula- tors, and the marshal collects the judgment by sale of such goods and lands, as in ordinary cases of execu- tion. 3. Sale of Property. There is no war- ranty, express or implied, in the sale of property by a court of admiralty. The Monte Allegre, 9 Wheat. (U. S.) 616. A court of admiralty has power to compel the payment of the purchase money in a judicial sale by attaching the person of the purchaser. The Kate Williams, 2 Flip. (U. S.) 50. A sale may be set aside on petition showing collusion, mistake, or a wholly inade- quate price. Steamer Sparkle, 7 Ben. (U. S.) 528. But a motion to set aside a sale must be made seasonably. U. S. v. Steamboat Austin, 9 Ben. (U. S.) 350; The Kaloolah, Brown Adm. 55. 4. Distribution of Proceeds. It is highly irregular for the marshal to retain proceeds or himself distribute them. The Collector, 6 Wheat. (U. S.) 194 ; Bark Laurens, Abb. Adm. 508. The surplus of proceeds of sale may be appropriated to the payment of other liens on the original property. Brackett v. The Hercules, Gilp. (U. S.) 184; The Fanny, 2 Lowell (U. S.) 508; Rodd v. Heartt, 21 Wall. (U. S.) 558; Gardner v. Ship New Jersey, i Pet. Adm. 223; The Santa Anna, B. & H. Adm. 79; Harper v. The New Brig, Gilp. (U. S.) 536; The Skylark, 2 Biss. (U. S.) 251. One who had no right of action in rent may be paid out of surplus proceeds in a court of admiralty. The Stephen Allen, B. &. H. Adm. 175; Petrie v. Steam-tug Coal Bluff No. 2, 3 Fed. Rep. 531. Contra, Remnants in Court, Olc. Adm. 382. When a cargo is arrested for freight, the owner should pay the freight admitted to be due into court. Freight-money of Canal-boat Monad- nock, 5 Ben. (U. S.) 357. 5. See The Delaware, 33 Fed. Rep. 589. Where libellant sued both ship and charterer in the District Court, which fixed the liability of the ship, but left the charterer's liability un- settled, it was held that the decree was 2 7 8 Appeals. ADMIRALTY. Appeal Bond. review, including all interlocutory decrees and orders which may have been entered during the progress of the suit. 1 How Taken. The appeal is taken by filing with the clerk of the district court, and serving on the proctor for the adverse party, a notice, signed by the appellant or his proctor, to the effect that the appellant appeals from the decree complained of. 2 2. Appeal Bond. Within ten days thereafter the appellant must also file a bond 3 in the sum of $250, conditioned that he will prosecute his appeal to effect, and pay the costs if the appeal is not sustained. Bond to stay Execution. This bond is therefore necessary to an ap- peal, but the giving of it does not stay execution of the decree below. In order to do that, another bond must be given, in such sum 4 as is ordered by the judge of the District Court or a judge of the Circuit Court of Appeals, conditioned that the appellant will abide by and perform whatever decree may be rendered by the Circuit Court of Appeals in the cause, or, on the mandate of that court, by the court below. 5 final and appealable as between libel- lant and the ship. The Alert, 61 Fed. Rep. 113. 1. The Havilah, 48 Fed. Rep. 684; The State of California, 49 Fed. Rep. 172. A finding of fact by a commis- sioner will, when erroneous, be re- versed on appeal. The Cayuga, 59 Fed. Rep. 483. A commissioner's findings, made on conflicting evidence, should not be disturbed unless error clearly appears. Panama R. Co. v. Napier, 61 Fed. Rep. 408. Proper Appellant. The claimant of record in the court below is the proper appellant, though he be but the master of the vessel, claiming for the benefit of the owner. The owner and surety, appearing also of record, may join in the appeal. Aiken v. Smith, 54 Fed. Rep. 894. Within What Time Final Decree Exe- cuted The final decree of the District Court cannot be executed until ten days after entry of such decree in that court*; in some districts, until ten days after notice of such entry has been served on the proctor for the party against whom the decree is entered. 2. Notice of Appeal. This notice stays the execution of the decree of the District Court for the further period of ten days from the date of filing the notice of appeal. In the second circuit the notice of appeal may contain the statement that the appellant desires to review one or more questions only, wh'ch questions must be stated in the notice, and the appellant is concluded by such notice, and the review on such appeal is limited to such questions. See Adm. Rule 3, Ct. C. A., Second Cir- cuit. Time to Perfect Appeal. In the ab- sence of any general rule or special order, the appellant, under Admiralty Rule 45, has thirty days from the ren- dition of the appeal within which to perfect his appeal. The Canary No. 2, 22 Fed. Rep. 536. 3. Bond Not Giren in Time. If this bond is not given within such ten days, the appeal will be deemed abandoned, and the decree of the District Court may be executed, unless otherwise or- dered by a judge of the Circuit Court of Appeals. 4. Amount of Bond. The amount of this bond is usually a matter of agree- ment between proctors, and should be amply sufficient to cover the amount of the decree of the District Court, and in- terest thereon pending the appeal. 5. Appeal Bond and Bond for Costs. Both this bond and the bond for costs are drawn to the appellee as obligee, and both bonds may be, and in common practice usually are, combined in one instrument, which recites that the ap- pellant's bondsmen are bound in such and such a sum, and in the further sum of $250, conditioned that the appellant shall prosecute his appeal to effect, and pay all costs if the appeal be not sus- tained, and will also abide by and per- form whatever decree may be rendered 279 Appeals. ADMIRALTY. The Citation. 3. Petition of Appeal. Under the old admiralty practice, a petition of appeal was necessary. This is a petition addressed to the judges of the appellate court, setting forth minutely the date of the filing of the libel, the exceptions thereto, if any, the date of the filing of the answer, and the time and place of hearing in the District Court, with the decision of the court thereon, and the date of the entry of the interlocutory decree ; a mention of the reference, and the amount of the final decree, with its time of entry ; and the fact that the appellant is advised and insists that the decree is erroneous : the whole concluding with a prayer that the appellate court will call up the record from the District Court and will hear the cause anew and revise the decree. It is signed by the proctor for the appellant, and need not be verified. 1 4. Assignment of Errors. The appellant is also required to indicate in what particulars he considers the decree of the District Court erroneous. This is called assigning error to the decree, and the document setting forth such error is called an assignment of errors. 2 5. The Citation. The citation is a notice issued by the appellate court, directed to the appellee in the cause, reciting briefly the appeal, and the filing of proper security by the appellant, and call- ing upon him to present himself at a certain time before the ap- by the Circuit Court of Appeals in the cause, or, on the mandate of that court, by the court below. Appeal bonds may be taken before a United States commissioner. The Canary No. 2, 22 Fed. Rep. 536. When appeal has a standing in the appellate court, irre- spective of the bond. The Natchez, 27 Fed. Rep. 309. In the Brantford City, 32 Fed. Rep. 324, it was held not neces- sary to give a new stipulation for the whole amount of the decree and costs. This decision was before the passage of the Circuit Court of Appeals Act, but probably would be followed. 1. Necessity for Petition of Appeal. In the Second Circuit, when the Circuit Court of Appeals has prescribed spe- cial rules in admiralty governing ap- peals, separate from the general rules in use in all the circuits, the petition of appeal would appear to be unneces- sary. For the ist Admiralty Rule provides that an appeal shall be taken by the filing of a notice of appeal, and Rule 4 requires the record on ap- peal to begin with a statement which contains all the facts for the informa- tion of the court formerly inserted in the petition of appeal. And yet General Rule n, which by the igth Ad- miralty Rule is specified as an ad- miralty rule, states that no writ of error or appeal shall be allowed until the assignment of error shall have been filed. This, by providing for the allowance of an appeal, would certainly seem to indicate that an appeal, or petition of appeal, is necessary. But in actual practice it is rarely used in the Second Circuit. In other circuits which have no admiralty appeal rules, and where appeals are governed solely by the general rules, a petition of ap- peal would apparently be neces- sary. 2. Ct. C. App. Rule TI. Particularity Kequired. In admiralty causes, which are frequently mere re- views of fact, it is often practically im- possible to assign minute error to the decree; and in th'e Second Circuit, at least, the assignment of errors is usually most simple, stating merely that the court erred in decreeing as it did, with the further error that it did not decree as the appellant thinks it ought to have decreed. If further error can be assigned, as to the admis- sion or rejection of evidence, or the con- duct of the trial, it should be set out in due form. And when the error alleged is as to the admission or rejection of evidence, the assignment must quote the full substance of the evidence ad- mitted or rejected. 280 Appeals. ADMIRALTY. New Testimony. pellate court to do and receive what may appertain to justice to be done in the premises. 1 6. Filing Papers. The assignment of errors, bonds, petition of appeal, and citation being all prepared, the appellant presents all four papers to the judge of the District Court, or a judge of the Circuit Court of Appeals, who allows the appeal, approves the bond, and signs the citation. A copy of the citation is then served on the appellee or his proctors, and all four documents, the citation accompanied by proof of service of a copy on the respondent or his proctors, are filed in the office of the clerk of the District Court. 7. Exceptions to Bond. The approval of the bond by a judge, as mentioned above, is a formal matter, but is required before the citation can be signed. 8 8. The Apostles. The clerk of the District Court thereupon makes up a transcript of the record of the cause. This is called the Apostles. 3 Certification and Eeturn.. The Apostles are certified by the clerk of the District Court, and are returned to the Circuit Court of Ap- peals within thirty days after filing the notice of appeal. 4 Notice and Appearance. The appellant's proctor thereupon serves notice on the appellee of the return of the Apostles, and the appellee must enter his appearance in the Circuit Court of Appeals within ten days thereafter, otherwise the appellant may proceed ex parte. 9. New Testimony. Under the old practice of appeal in admi- ralty, either party had a right to file new pleadings and take new evidence on appeal as matter of course. It was one of the great 1. Necessity of Citation. It is doubt- which appellant desires to have re- ful if a citation is necessary in an viewed; the reports of the commis- admiralty appeal. It belongs more sioner, the exceptions thereto, and the properly to a writ of error. The rulings on the exceptions; the opinions notice of appeal given in an admiralty of the court, the final decree and appeal cause gives to the appellee all the papers, and the assignment of errors, warning necessary of the carrying up Adm. Rule 52. In the Second Circuit of the case, and makes the service of parties may stipulate that the Apostles a citation a superfluity. may consist of portions of the record 2. Rev. Sts. sec. 1000. only, when only one or more questions On filing the bond in the District are sought to be reviewed. See Adm. Court, the appellant should give notice Rule 4 of the Circuit Court of Appeals, of such filing, and of the names and Second Circuit. When the record is not residences of the sureties. If the ap- made up in accordance with Adm. Rule pellee excepts to the sureties, they 52, the Appellate Court cannot be re- must justify on short notice. If no quired to review the testimony. The exception be served, the bond is Alijandro v. Wallace, 56 Fed. Rep. deemed approved. 621. 3. Derivation. Greekl47rocrr'/l/l677', 4. No dismissal for failure to docket to send from, i.e., that which is sent case. The Chatham, 52 Fed. Rep. 396. from the District Court. Printing. In the Second Circuit Making up the Apostles. The Apostles the Apostles are printed by the clerk contain a short history of the cause, of the Circuit Court of Appeals, who with the dates of the various events; delivers a certain number of copies to all the pleadings, the proofs, the inter- each proctor. In other circuits the ap- locutory decree, and any order of court pellant prints the record. 281 Appeals. ADMIRALTY. Decision. differences between an admiralty and a common-law appeal. This practice is retained in many of the circuits. 1 10. Briefs. Following the practice of the Supreme Court, the Circuit Courts of Appeal require printed briefs to be filed a cer- tain number of days before the hearing of the appeal. 2 11. Hearing. The appeal comes up for hearing in regular order, and is argued by the respective advocates, the appellant being entitled to open and close, except in case of cross-appeals, when the libellant in the court below is entitled to open and close. 3 12. Decision Mandate. In due course the court hands down its decision. The successful party thereupon prepares the mandate, which is the order of the Circuit Court of Appeals to the Dis- trict Court to do certain matters and things in the cause. The mandate is rendered necessary by the fact that the appellate court does not execute its own decrees. An order is at the same time pre- pared directing the mandate to issue to the District Court ; and a copy of this proposed order and of the proposed mandate is served on the proctor for the losing party, with a notice of motion for the order. The losing party may attend on the motion to object to the form of the order or mandate as proposed. When the proper form has been settled, the costs of the Circuit Court of Appeals are made up by the clerk of that court and attached to the mandate, which is signed by the clerk, and delivered to the 1. New Testimony When Allowed. circuits, but the appellant must always An admiralty appeal has always been file his brief first, and an opportunity regarded as a new trial. Irvin v. The thus be given to the appellee of seeing Hesper, 122 U. S. 256; The Ethel, 31 it in sufficient time before printing his Fed. Rep. 576; The Cassius, 41 Fed. own brief to answer the argument of Rep. 367. See Shaw v. Folsom, 40 his opponent. Fed. Rep. 511; The Ciampa Emilia, 50 3. Conflicting Evidence. The deci- Fed. Rep. 239; The Guy C. Goss, 53 sion of the District Court on questions Fed. Rep. 826. But in some of the of fact, when the evidence is conflict- circuits such new testimony can be ing, will ordinarily not be disturbed, taken only on order granted by the The Thomas Melville, 37 Fed. Rep. Court of Appeals on cause shown. 271; Cooper v. The Saratoga, 40 Fed. And the courts are somewhat inclined Rep. 509; The Ludwig Holberg, 43 to discourage the general taking of Fed. Rep. 117; Duncan v. The Gov. such testimony, and allow it only on Francis T. Nicholls, 44 Fed. Rep. 302; good cause being shown for the previ- Mentz v. The Sammy, 44 Fed. Rep. ous omission to take it. Singlehurst v. 624; The Parthian, 48 Fed. Rep. 564; Compagnie Generale Transatlantique, Bixby v. Deemar, 54 Fed. Rep. 718; 50 Fed. Rep. 104; The Venezuela, 52 The City of New York, 54 Fed. Rep. Fed. Rep. 873; Sorensen v. Keyser, 51 181; The Alijandro, 56 Fed. Rep. 621; Fed. Rep. 188; The Lurline, 57 Fed. S.S. Wilhelm, 59 Fed. Rep. 169. Rep. 398; Red River Line v. Cheatham, No Allowance of Interest. When both 60 Fed. Rep. 517; The Philadelphian, parties appeal from the decision of the 60 Fed. Rep. 423. See Ross v. Southern District Court apportioning damages, Cotton Oil Co., 41 Fed. Rep. 152; The the Circuit Court, on affirming its de- Sirius, 54 Fed. Rep. 188; The Beeche cree, will not allow interest. The C. Dene, 55 Fed. Rep. 526; New Plead- P. Raymond, 36 Fed. Rep. 336. ings, The Thomas Melville, 34 Fed. Appeals in Salvage Cases. The Bay of Rep. 350. Naples, 48 Fed. Rep. 737; The Albany, 2. This Time Varies in the different 48 Fed. Rep. 565.' 282 Evidence. ADMIRALTY, Generally. proctor for the successful party, who files the same in the clerk's office of the District Court. 1 13. Final Decree. A decree is thereupon entered in the District Court in the terms of the mandate, commanding that the libel be dismissed or that the libellant recover a certain sum, or decreeing any other relief called for by the mandate, and ordering the origi- nal sureties and the sureties on appeal to make good the obliga- tion of their stipulations, as in the final decree of the District Court in the first instance.'- 4 And thereupon execution may issue as already indicated. 3 14. Appeal to the Supreme Court. An appeal to the Supreme Court in the cases where an appeal lies directly from the District Court to the Supreme Court is taken in the same manner as an appeal to a Circuit Court of Appeals under the general rules of the latter courts. 4 Prohibition Mandamus Certiorari. In cases where prohibition, man- damus, or certiorari to a District Court, or for mandamus or certiorari to a Circuit Court of Appeals 5 is applied for, the appli- cation is made ex parte, on a petition setting forth the facts. The petition should be accompanied by twenty-five copies of the record in the court below, 6 one of which must be certified by the clerk of that court.'' XXL EVIDENCE 1. Generally Rules. The Supreme Court has provided no rules relating to the general examination of wit- nesses in an admiralty cause. 8 Hence each court has in general followed its own rules. 9 1. Costs. The question of costs preme Court may issue the writ on should be settled by motion, if neces- such ex parte application alone. sary, before the mandate issues from In Cases of Prohibition and Mandamus the appellate court. The State of Cali- it is usual for the Supreme Court to fornia, 54 Fed. Rep. 404. issue an order to the court below, call- 2. The Sydney, 47 Fed. Rep. 260. ing upon it to show cause why the 3. See ante, XIX. writ should not issue. That court re- 4. Act March 3, 1891; 26 Sts. at L. turns what it has done in the cause, p. 826. See Supreme Court Rules 35 and leaves it to the proctor for the and 36. party who objects to the prohibition Amount Involved. The old provision or the mandamus in the court below to requiring the amount involved in such show the requisite cause. If, on hear- an appeal to be $5000 is done away ing before the Supreme Court, proper with by the Act of March 3, 1891. cause be not shown, the writ will issue. 5. District Court. The statutes give If certiorari be granted, the case will the Supreme Court power to issue pro- go on the calendar of the Supreme hibition tto the District Court only. Court, and the cause be fully exam- Rev. Sts. 688. ined in regular order, as though it 6. Copies of Record. The clerk of the were an actual appeal. Supreme Court will sometimes accept 8. Rules Prescribed by Supreme Court. ten copies of the record on the applica- The Revised Statutes provide that the tion for the order to show cause why mode of proof in admiralty causes the writ should not issue, one copy for shall be according to rules to be pro- the files and one for each of the jus- pounded by the Supreme Court. Rev. tices; but if the order to show cause Sts. 862. be granted, the full number must be 9. Examination of Witnesses in Different filed before the hearing. Courts. It has been heretofore noted 7. In Oases of Certiorari the Su- that in some districts the witnesses are 283 Evidence. ADMIRALTY. Depositions De Bene Esse. The General Laws of Each State govern the competency of witnesses, 1 and the rules of the state courts as to the admissibility of evi- dence in general are to be considered. 2 2. Depositions De Bene Esse. It often happens in the admiralty that witnesses cannot be kept in port until the hearing of a suit, and hence that their evidence must be reduced to writing. This is accomplished by an examination de bene esse, notice of the hold- ing of which must be served on the opposing proctor a reasonable time beforehand. 3 Place of Examination. It is not necessary that the examination should be held in the district which is the place of trial. 4 Opposing Side Unrepresented. If the notice was properly served, and the requisites as to the departure or infirmity of the witness are shown, the deposition can be read in evidence, though the oppos- ing side was unrepresented at the examination. 5 examined orally in open court ; in others, their testimony is written down before trial by a commissioner, and the written testimony only submitted to the court. 1. Rev. Sts. 858. 2. Variance between Pleading and Proof. Dupont de Nemours v. Vance, 19 How. (U. S.) 162; Brig Sarah Ann, 2 Sumn. (U. S.) 206; The Gen. Meade, 20 Fed. Rep. 923; The Iris, i Lowell (U. S.) 520; Davis v. Leslie, Abb. Adm. 123; The Rocket, i Biss. (U. S.) 354; The Camanche, 8 Wall. (U. S.) 448 ; The William Penn, 3 Wash. (U. S.) 484. Admission in Answer. An admission in an answer, -afterward withdrawn, still has weight as evidence. Kenah v. Tug John Markee, Jr., 3 Fed. Rep. 45- Exceptions to Ruling of Court. It is not necessary to except to the adverse ruling of a court in a matter of the admission or exclusion of evidence in order to have such admission or ex- clusion reviewed on appeal. The assignment of errors practically takes the place of such exception, and calls the attention of the appellate court to the disbelief of the appellant in the correctness of the ruling, which is the function of an exception. 3. Notice of Examination. Sections 863, 864, and 865 of the Revised Stat- utes provide an easy method of secur- ing such evidence. The proctor for the party desiring to take it serves on the opposing proctor a simple notice that the witness, naming him, who re- sides at a greater distance than 100 miles from the place of trial, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than loo miles from the place of trial, before the time of trial, or is ancient or in- firm, will be examined de bene esse at a certain time and place before a magis- trate, and that the opposing proctor is required to be present at such exam- ination and put such questions to the witness as he shall think fit. Depositions in a Foreign Country can- not be taken under 863. Cortes Co. v. Tannhauser, 18 Fed. Rep. 667. Production of Books and Papers. A witness examined under 863 may be compelled to produce books and papers in his possession which would be ma- terial and competent evidence for the party calling him, on the trial of the cause, but he cannot be compelled to produce books and papers merely for the purpose of refreshing his memory. U. S. v. Tilden, 10 Ben. (U. S.) 566. ' 4. Reasonable Notice. A notice can be served on a New York proctor to take testimony in San Francisco under this section, but in all cases the notice of examination must be served in sea- son to allow a reasonable time for the proctor so notified to be present or rep- resented at the examination. What is such reasonable notice is a question for the court. 5. Motion to Suppress. But if the no- tice is too brief to allow the opposing proctor to be present, or if he is aware that the requisites of the statute are not complied with, a motion to suppress the 84 Evidence. ADMIRAL TY. Dedimus Potestatem. The Deposition must be Reduced to Writing by the magistrate taking it, after the witness has been sworn, and must be subscribed by the deponent. 1 Keturn. It must then be returned by the magistrate to the court for which it was taken, under seal, and with a certificate of the reasons for which it was taken, and the notice given to the ad- verse party. 2 3. Dedimus Potestatem, or Commission to Take Testimony. It very commonly happens in admiralty suits that the testimony of witnesses resident abroad is required. On affidavit showing the materiality of such testimony, and on notice to the other side, the court will issue its commission to some disinterested party, empowering him to take the evidence of the witness therein named and return the same to the court. 3 Interrogatories. The motion for the commission being granted, the moving party serves written interrogatories on the opposite party, who in turn serves cross-interrogatories, which are settled by the court on notice, if the parties disagree concerning them. The clerk then attaches such interrogatories to the commission, which is issued by the clerk and under the seal of the court, with instructions as to its execution, and it is despatched to its desti- nation. 4 After Execution. After being executed it is returned to the clerk, who opens it on order or by consent and in the presence of both proctors, and places it on the files. 4. Letters Rogatory. An admiralty court will also obtain the evidence of foreign witnesses by means of letters rogatory. 5 deposition must at once be made on Time of Moving for Commission. In such ground. Doane v. Allen, 24 Wall, the New York districts the commission (U. S.) 33. And it will not do to wait must be moved for within fourteen until the time of trial and then object days after the claim or answer is filed to the admission of the deposition, for and perfected. the reason that if a deposition is sup- Commission for Special Object. A com- pressed before trial for irregularity in mission may be issued for some special the method of taking it, there may yet thing besides the obtaining of evi- be time for the party calling the wit- dence, such as the verification of a ness to take his deposition over again libel personally by a foreign libellant. in proper form and in due season for Stay of Proceedings. The order for the trial. Bibb v. Allen, 1491!. S. 481. commission usually contains a stay of 1. Rev. Sts. 864. Cook v. Burn- proceedings until the return of the ley, ii Wall. (U. S.)6sg. commission duly executed. Bight of Master to be Present. The 4. Oral Cross-Examination; An order master of a vessel has a right to be for oral cross-examination on a corn- present at the taking of the depositions mission may be made. Steamship of his crew. Bark Havre, I Ben. (U. S.) Louisiana, i Ben. (U. S.) 328. 295. Enlarging Time. On proof of newly- 2. Rev. Sts. 865. discovered evidence, the court may en- 3. See Ship Norway, 2 Ben. (U. S.) large the time for taking testimony, 121. although previously closed by order. Commissions to Foreign Countries. In Schooner Ruby, 5 Mason (U. S.) 451. commissions to foreign countries the 5. Nature of Letters Rogatory. This is commissioner named is usually the a document issued by the court to some uearest United States consul. foreign tribunal requesting it to call 285 Petitions and Motions. ADMIRALTY. Petitions and Motions. 5. Depositions In Perpetuam Rei Memoriam. The statutes pro- vide also that any Circuit Court, upon application to it as a court of equity, may, according to the usages of chancery, direct deposi- tions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States. 1 XXII. PETITIONS AND MOTIONS. Almost any matter in which either of the parties to a suit desires relief may be brought before the court by a petition or a motion ; by a petition, generally, if the matter is ex parte? otherwise by a motion. And the court will hear evidence on the matter, either ex parte, or on notice to such parties as are known to it as persons who maybe interested in the decision ; or on general notice by publication ; and will decide according to justice. Motions are applications for relief of some kind made on notice 3 before it, by its ordinary process, cer- tain witnesses within its jurisdiction and examine them touching certain subjects, either orally or on interroga- tories. And the letters always assure the foreign tribunal that the court issu- ing the letters will do the same for it in return, if the occasion should arise. This method of obtaining evidence is especially valuable if the witnesses sought to be examined are hostile or in- different to the party desiring their tes- timony, inasmuch as the foreign tri- bunal can put forth its process and compel the appearance and testimony of the witness by its ordinary methods for so doing. How Obtained. An order for the issu- ing of letters rogatorycan be obtained on simple motion, accompanied by proof of the necessity therefor. 1. Testimony for Future Suit. Rev. Sts. 866. Under this section a depo- sition can be taken before suit brought, and for the purpose of perpetuating the testimony in the event of a future suit. How Taken. It is taken according to the usages of chancery. On petition to the Circuit Court, setting forth the necessary facts, the court will, as of course, grant the order to perpetuate the testimony. Notice of the exami- nation should be served on all known parties who may possibly be interest- ed, and the deposition, when taken, is filed with the clerk of the Circuit Court. If suit is thereafter brought in the Dis- trict Court, an order for the transmis- sion of the deposition from the files of the Circuit to the District Court can be obtained, as of course, before trial. 2. Examples. The petition under the Sgth Rule, the petition of an executor to continue the suit after the death of a party, and the petition for leave to intervene, are common examples. It often happens, also, that when prop- erty has been sold and the proceeds have been deposited in court, a sur- plus may remain after all claimants are paid. When there is such a surplus, the owner may come to the court with a petition stating his ownership and praying the restoration of his property. Or other persons, having claims of a maritime nature against the owner, may attack the fund in court by a petition. Such a petition need not be accompanied by a stipulation for costs. Adm. Rule 43 ; Andrews v. Wall, 3 How. (U.S.) 568; Mutual Safety Ins. Co. v. Cargo of Brig George, Olc. Adm. 89; The Santa Anna, B. & H. Adm. 79; The Boston, B. & H. Adm. 309; The Stephen Allen, B. & H. Adm. 175; The E. V. Mundy, 22 Fed. Rep. 173. See The Albert Schultz, 12 Fed. Rep. 156. Effect of coming in by petition after final decree of condemnation and sale. The Sea Lark, 34 Fed. Rep. 52. But a proceeding by a salvor against a fund in court, already decreed to an- other salvor, to secure contribution thereof under an alleged contract, cannot be maintained in -the admi- ralty. Sheldrake v. The Chatfield, 52 Fed. Rep. 495. But a salvor may pro- ceed in admiralty against his co-salvor to recover a share of the salvage money. McMullin v. Blackburn, 59 Fed. Rep. 177. Payment of proceeds to proctors. See Rostron -v. The Water Witch, 44 Fed. Rep. 95. 3. Notice. Reasonable notice is usually sufficient, and in many cases 286 Limitation of Actions. ADMIRALTY. Limitation of Actions. to the other side during the progress of a suit. 1 They do not differ from motions in ordinary cases at law, except that they are usually more informally made. And it is not always necessary to accompany the notice of motion with an affidavit. 3 The whole matter, in this as in other branches of the admiralty practice, lies in the sound discretion of the court, and is little confined by arbi- trary rules. 3 XXIII. LIMITATION OF ACTIONS. There is no absolute statute of limitations in admiralty. 4 Laches. But the court will not allow a stale claim to be prose- cuted, and what lapse of time will make a claim stale is always a question of fact for the court. In general, an admiralty court will adopt the trem specified by the statute of limitations of the state, and hold a claim which at common law would be barred by such statute to be barred in admiralty by the laches of the plaintiff, 5 unless there is some peculiarity of a maritime nature when speed is necessary twenty-four hours' notice is all that is given. 1. Question of Jurisdiction. A ques- tion of jurisdiction ought not to be dis- posed of on motion, but presented by pleading at the trial. Gushing v. Laird, 4 Ben. (U. S.) 70; The Crusader, I Ware (U. S.) 437; Lands v. A Cargo of Coal, 4 Fed. Rep. 478. Giving of a Stipulation. The giving of a stipulation is not necessarily a waiver of an objection to the jurisdic- tion. The Orpheus, 3 Ware (U. S.) 143- Joinder of Issue. But joinder of issue and filing of a cross-libel is such waiver. The Fifeshire, n Fed. Rep. 743- Motion to Dismiss Libel. A motion to dismiss a libel in rem in admiralty may be made, although a full hearing has been had on the merits. The John C. Sweeny, 55 Fed. Rep. 540. 2. Affidavit. Any formal motion, such as one to obtain a short order of publication or to confirm a report nisi, need not be accompanied by an affida- vit, though the court, on hearing the motion, may require proof as to the facts before granting the motion; and this even though the motion be not defended. A motion for additional security in the admiralty may be supported by the affidavit of the proctor. Brig Har- riet, Olc. Adm. 222. 3. New York. In New York, where person or property is arrested, any one interested may, on evidence showing any improper practices or manifest want of equity on the part of thelibel- lant, have a mandate from the judge for the libellant to show cause instan- ter why the arrest or attachment should not be vacated. D. C. Rule 19. 4. Adopting State Statutes. The nearest approach is when the admi- ralty determines to follow some state statute, as in cases of liens for sup- plies furnished to domestic vessels. Then the requirements that specifica- tions shall be filed with the county clerk within thirty days after the com- pletion of the work, and that the suit must be commenced within one year unless the vessel is absent at the end of the year, are strictly enforced. 5. McCluny v. Sillman, 3 Pet. (U. S.) 270; Ross v. Duval, 13 Pet. (U. S.) 45; Jays'. Allen, i Sprague(U. S.) 130; Brig, Sarah Ann, 2 Sumn. (U. S.) 206; The Key City, 14 Wall. (U. S.) 653; The H. B. Foster, 3 Ware (U. S.) 165; Coburn v. Factors, etc., Ins. Co., 20 Fed. Rep. 644; The Platina, 3 Ware (U. S.) 180; The Harriett Ann, 6 Biss. (U. S.) 13; The Blenheim, 5 Sawy. (U. S.) 192; Scull v. Raymond, 18 Fed. Rep. 547; The Robert Gaskin, 9 Fed. Rep. 62; Harpending v. Dutch Church, 16 Pet. (U. S.) 455; The Columbia, 13 Blatchf. (U. S.) 291; The D. M. French, i Lowell (U. S.) 43; The Frank Moffatt, 2 Flip. (U. S.) 291; The Bristol, 20 Fed. Rep. 800; Bailey v. Sundberg, 49 Fed. Rep. 583; Smith -v. Sturgis, 3 Ben. (U. S.) 330; Joyz/. Allen, 2 Woodb. & M. (U.S.) 303; Ship Mary, i Paine (U. S.) 180; Syles v. Steamship Santiago de Cuba, 2 Fed. Rep. 271; The Utility, B. & H. 287 Intervention. ADMIRALTY. Intervention. which makes it a matter of justice that the plaintiff be allowed to sue. 1 In such cases the court in its discretion will disregard the periods fixed by state statutes. XXIV. INTERVENTION. There are many cases where one may be interested in the outcome of an admiralty suit, though he is not the libellant, or owner of the res libelled. Such person may intervene for his own interest in the suit already begun. 2 How Accomplished. Intervention may be accomplished by a peti- tion to the court setting forth the interest of the intervenor, and praying that he may be permitted to intervene for his own in- terest. Such petition must be accompanied by a stipulation for costs, as in all cases of appearance. 3 The court will usually grant the prayer of such a petition as of course ; but if there is doubt as to the propriety of the intervention, an order can be always had requiring libellant or claimant to show cause why the prayer of the petition should not be granted, or even referring the mat- Adm. 218; Southard v. Brady, 36 Fed. Rep. 560; Nesbit v. The Amboy, 36 Fed. Rep. 926 ; The Queen of the Pacific, 61 Fed. Rep. 213. 1. The Key City, 14 Wall. (U. S.) 653. 2. Salvage Cases. Thus where there are several salvors and one of them libels the vessel saved, the proper pro- ceeding for the other salvors is not to commence independent proceedings, but to intervene in the suit of the first salvor. But when in salvage cases the various interests are somewhat antag- onistic it is not only proper but some- times necessary that several libels be filed. The S. S. Merrimac, I Ben. (U. S.) 68. These may then be tried together. Suit for Wages Mortgagee etc. And when one seaman has brought suit for his wages, other seamen suing for wages on the same voyage are re- quired to come into the first suit in- stead of libelling anew; likewise when a vessel is libelled for any cause what- ever and the owner has appeared and claimed, a mortgagee or other lienor may intervene to defend the vessel in the interest of his own lien. Steam- boat Edward Howard, Newb. Adm. 522; The L. B. Goldsmith, Newb. Adm. 123; The Two Marys, 12 Fed. Rep. 152; The Steamship Oregon, 42 Fed. Rep. 78; Steamer City of Paris, i Ben. (U. S.) 529; The Nahor, 9 Fed. Rep. 213; Pertie v. Steamship Cold Bluff No. 2, 3 Fed. Rep. 531; The Queen, 40 Fed. Rep. 694; The Julia, 57 Fed. Rep. 233- Bond Given for Full Value. When the stipulation or bond is given for the full value of the res libelled, an inter- venor may proceed against the bond as he would against the res itself. The Oregon, 45 Fed. Rep. 62. Bond Given for Original Claim. But apparently not where the bond has been given simply to cover the original claim. The T. W. Snook, 51 Fed. Rep. 244; Osborne v. U. S., 91 U. S. 474; The Commander -in- Chief, i Wail. (U.S.) 43 . Mortgagee. One having a mortgage on a vessel may intervene and be paid out of the proceeds in court, although he may not have been able to maintain a libel for want of jurisdiction in the court. Leland v. Ship Medora, 2 Woodb. & M. (U. S.) 92. Lienor Suit for Forfeiture. One hav- ing a lien on a vessel may intervene for his interest in a suit for forfeiture. The Mary Anne, i Ware (U. S.) 104; The Old Concord, i Brown Adm. 270. Possessory or Petitory Suit State Stat- ute. In a possessory or petitory suit the party having a lien under state statutes cannot intervene to enforce his lien, which cannot be effected by the decree in a possessory suit. The Tarranto, I Sprague (U. S.) 170. Insurer. An insurer may intervene. Propeller Monticello v. Mollison, 17 How. (U. S.) 152, Court May Impose Terms. The court may impose terms on allowing one to intervene. The America, 56 Fed. Rep. 1021. 3. Adm. Rule 34 ; Rawson v. Lyon, 15 Fed. Rep. 831. 288 Consolidation of Suits. ADMIRALTY. Personal Injuries. ter to a commissioner to take proof as to the propriety of the would-be intervenor's application. XXV. CONSOLIDATION OF SUITS. The admiralty courts, when no injustice will be perpetrated thereby, will not hear more than one controversy involving the same facts. 1 And where there are a number of suits against the same object and arising out of the same transaction, the court, on motion, will consolidate the suits. 2 State Laws. Suits can also be consolidated where the law of the state allows a consolidation. XXVI. PEKSONAL INJURIES. A suit to recover for personal in- juries occasioned by negligence may be brought in admiralty, either in personam or in rem, where the locus of the tort was with- in the admiralty jurisdiction. And the case is heard as any case of tort in the admiralty, and the amount of damages to be awarded is entirely in the discretion of the court. 3 Death Claims. In the absence of any act of Congress allowing a personal representative to recover damages for a tort causing death, such a suit cannot be maintained in the admiralty when the death occurred on the high seas. 4 dered in common by all. In such a suit not only is an advantage gained in a saving of time and expense, but the whole matter being before the court at once, it can observe more readily the relative merits of the dif- ferent salvors. The Eliza Lines, 61 Fed. Rep. 308; The Sarah E. Kennedy, 25 Fed. Rep. 672. 3. Locus of Tort Generally. The Neil Cochran, Brown Adm. 162; The Otta- wa, Brown Adm. 356; The Plymouth, 3 Wall. (U. S.) 20; Ex parte 'Phoenix Ins. Co., 118 U. S. 610; The Epsilon, 6 Ben. (U. S.) 381; The Maud Webster, 8 Ben. (U. S.) 547; The Curtis, 37 Fed. Rep. 705; The City of Lincoln, 25 Fed. Rep. 835; City of Boston v. Crowley, 38 Fed. Rep. 202; Assante v. Charles- ton Bridge Co., 40 Fed. Rep. 765; Hill v. Board of Freeholders, 45 Fed. Rep. 260; Penn. R. Co. v. Cent. R. Co., 59 Fed. Rep. 190; Greenwood v. Town of Westbrook, 60 Fed. Rep. 560. Contributory Negligence No Bar. Contributory negligence is not a bar to a suit in the admiralty for a personal injury; but where negligence is shown on both sides, the court may award libellant one-half his damages. The Max Morris, 137 U. S. i; The Explorer, 20 Fed. Rep. 135; The Truro, 31 Fed. Rep. 158; Anderson v. The Ashbrooke, 94 Fed. Rep. 124; The Mystic, 44 Fed. Rep. 398; Olsen v. Flavel, 13 Sawy. (U. S.) 232. 4. The Alaska, 33 Fed. Rep. 107; Welsh v. The North Cambria, 39 Fed. 1. Rev. Sts. 921; The North Star, 106 U. S. 17; The Queen of the Pacific, 61 Fed. Rep. 213. Thus the old rules of the District Court for the Southern District of New York pro- vided that when various actions were pending, all resting upon the same mat- ter of right or defense, the court, in its discretion, would compel the parties in one suit to abide by the decision of the other, though there was no common interest among them. This rule is now obsolete. But its effect is re- tained in a rule providing for consoli- dation of similar suits, and this prac- tice is common to other districts than the one specified. And when several parties are suing the same res, though with distinct rights, the proceedings are, for certain purposes, necessarily to be considered together, as to mat- ters of priority. See The Prinz Georg, 19 Fed. Rep. 653. Husband and Wife's Suit for Same Cause of Action. Where libellant sued for damages, and while his suit was still pending his wife began a separate suit for the same cause of action, the court held that she should have made her- self a party to her husband's suit, and dismissed her libel. The William F. McRae, 23 Fed. Rep. 557. 2. Various Libels for Same Cause. If more than one seaman on a particular voyage libels a vessel, the court, on motion, will of course consolidate the suits. And so in cases where various salvors libel for a salvage service ren- i Encyc. PI. & Pr. 19. 289 Death of a Party. ADMIRALTY. Costs. But when the tort occurs within the boundaries of a state, though on navigable waters within the admiralty jurisdiction, and the law of the state gives a right of action for such tort, the ad- miralty court will adopt to itself the state law, and award as dam- ages for the tort the amount allowed by the statute of the state, or other amount in its discretion. 1 The libellant is of course the executor or administrator of the decedent.* XXVII. DEATH OF A PARTY. When a party dies pending a suit, his personal representatives may come in by petition to the court, and prosecute or defend the suit to an end. 3 Or, if they decline to do so voluntarily, they may be made parties on the pe- tition of the adverse party. 4 And the usual stipulations are re- quired of parties so coming or brought into a suit. 5 XXVIII. COSTS. The award of costs in admiralty is always a matter in the discretion of the court. 6 The amount of costs is Rep. 615; The Harrisburg, 119 U. S. 199. 1. Holmes v. Oregon, etc., R. Co. ,6 Sawy. (U. S.)262; Steamship Oregon, 42 Fed. Rep. 78. See The St. Nicho- las, 49 Fed. Rep. 671; Cheatham v. Red River Line, 56 Fed. Rep. 248; Boden v. Demwolf, 56 Fed. Rep. 846; Oleson v. The Ida Campbell, 34 Fed. Rep. 432. But such a suit being sub- ject to the conditions of the state statute, contributory negligence of the deceased will bar recovery in an ad- miralty court. The City of Norwalk, 55 Fed. Rep. 98. In Jones v. The St. Nicholas, 49 Fed. Rep. 671, where a shipowner filed a libel in limitation of his liability for death claims, the court held that by this action the owner was estopped from denying the right of the representatives of the deceased to share in the fund realized from the sale of the boat if negligence was found, although the statute of the state, giving a right of action for wrongful death, gave no lien therefor. 2. Actions In Kem and In Personam. Although it has been held that a ves- sel carries with her on the high sea the laws of the state to which she belongs 'McDonald v. Mallory, 77 N. Y. 546), yet the Supreme Court has held that no action in rem will lie to recover for death, although by the law of the state a right of action may survive to the decedent's personal representative, unless such state shall expressly give a lien for the tort, which most of the state statutes allowing recovery for a tort causing death fail to do. The Corsair. 145 U. S. 335. But the action will lie in personam when the tort occurred within the state whose law gives a right of action for damages for such tort. The City of Norwalk, 55 Fed. Rep. 98, 61 Fed. Rep. 364; In re Humboldt Lumber Manuf'r's Assoc. 60 Fed. Rep. 428. Where the constitution and code of a state fix its seaward boundary at a line three miles from shore, an action can be main- tained for wrongful death occurring on the high seas two miles from shore. Id. When the local law gives a right of action for wrongful death, and makes the damages a lien on the vessel, a suit in rem will lie. The Premier, 59 Fed. Rep. 797. 3. Penhallow v. Doane, 3 Ball. (U. S.) 54; Nevitt v. Clarke, Olc. Adm. 316; Ship Octavia, i Mason (U. S.) 149. See The Cadiz, 20 Fed. Rep. 157. 4. Contents of Petition. The petition should contain briefly the prayer of the original pleading, the interest of the new party, and the proceedings there- tofore had in the cause, and conclude with a prayer that the persons named may be made parties to the suit. 5. Death Pending Appeal. As to the death of a party pending an appeal to the Circuit Court of Appeals, see C. C. App. Rule 19. 6. When Allowed. An exaggerated claim may be followed by a disallow- ance of costs. The Maggie J. Smith. 123 U. S. 349. See The Benison, 36 Fed. Rep. 793; Forace v. Salinas, 50 Fed. Rep. 284; The Komuk, 50 Fed. Rep. 618 ; The Stelvio, 34 Fed. Rep. 431; The Marinim S., 28 Fed. Rep. 664. See Pettie v. Boston Tow-boat Co., 44 290 Costs. ADMIRALTY. Costs. regulated by statute, and, if we except disbursements, which are sometimes heavy, are very moderate when compared with the costs allowed by the courts of many of the states. 1 Fed. Rep. 382; The Weatherby, 49 Fed. Rep. 463 ; The O. C. DeWitt, 59 Fed. Rep. 620. Unnecessarily encumbering record. The Ashland, 19 Fed. Rep. 651. No costs allowed when libel dis- missed on grounds not pleaded. The Ocean Express, 22 Fed. Rep. 176. No costs allowed on dismissal of libel where there were apparently good grounds for bringing the suit. The Geneva, 26 Fed. Rep. 647. No costs where libellant did not prop- erly present his case until it reached the appellate court. The Jefferson, 31 Fed. Rep. 489 ; The Olympia, 52 Fed. Rep. 985; The John Sherman, 52 Fed. Rep. 985; The Pioneer, 53 Fed. Rep. 279; The D. , L. & W. No. 6 C., 53 Fed. Rep. 284 ; The Atlantic, 53 Fed. Rep. 607 ; The Union Ice Co. v. Crowell, 55 Fed. Rep. 87. Costs given against one who sues for debt before it is due, although the libel was retained. The Papa, 46 Fed. Rep. 576. On Appeals a docket fee of $25 is al- lowed, the expenses of printing record and briefs, and the fees of the clerk of the appellate court. See The Lillie, 42 Fed. Rep. 179 ; Miller v. Cox, 46 Fed. Rep. 662. See also Healy v. Cox, 46 Fed. Rep. 663. When a decree for libellant includes interest, he is en- titled to interest on the whole amount of the decree below, unless there are special circumstances. The Umbria, 59 Fed. Rep. 475. On a libel against one vessel for damages to cargo of another vessel by collision, and decree against the vessel libelled, if the decree is reversed on claimant's appeal, claimant is entitled to costs. Id. What costs libellant entitled to. Id. One who appeals from a decree in his favor in a collision case is not entitled to interest pending the appeal. The Ex- press, 59 Fed. Rep. 476. And when both parties appeal from a decree, dividing damages, and the decree is affirmed, interest will not be allowed. The C. P. Raymond, 36 Fed. Rep. 336. Failure of a party to a decree for division of damages to appeal there- from prevents reversal as to him. The J. and J. McCarthy, 61 Fed. Rep. 516. Ten per cent additional damages on unjustifiable appeal. Id. Appellate court may modify decree by excluding interest. The North Star, 62 Fed. Rep. 71. 1. Docket Fee. The proctor is en- titled to a docket fee of twenty dollars on the final hearing; for each deposi- tion taken and used in evidence, $2.50; for services rendered in removing a case from a district to a circuit court by appeal, $5.00. Docket fee allowed in Hayford v. Griffith, 3 Blatchf. (U. S.)34; Andrews v. Cole, 22 Blatchf. (U. S.) 184 ; The Bay City, 3 Fed. Rep. 47; Goodeyear v. Sawyer, 17 Fed. Rep. 2; Price v. Cole- man, 22 Fed. Rep. 694; Partee v. Thomas, 27 Fed. Rep. 429. Final hear- ing. The Alert, 15 Fed. Rep. 621. On exceptions. The Anchoria, 23 Fed. Rep. 669. On reference. Kelleyz/.TheTopsy, 45 Fed. Rep. 486. Deposition fee al- lowed in Beckwith v. Easton, 4 Ben. (U. S.) 357; Jerman v. Stewart, 12 Fed. Rep. 271; The Sallie P. Linderman, 22 Fed. Rep. 557; Wooster v. Handy, 23 Fed. Rep. 49; American Diamond Rock Boring Co. v. Sheldon, 28 Fed. Rep. 217. In summary proceedings, when amount is less than $50, no proctor's fee except by special allowance of the court. The Ethel, 59 Fed. Rep. 474. Only one docket fee when case is appealed. The Lillie, 42 Fed. Rep. 179 ; Miller v. Cox, 46 Fed. Rep. 662. Not allowed in Jones v. Schell, 8 Blatchf. (U. S.) 79; Doughty v. West, 8 Blatchf. (U. S.) 107; Yale Lock Mfg. Co. v. Colvin, 21 Blatchf. (U. S.) 168 ; Strafer v. Carr, 6 Fed. Rep. 466 ; Cox v. Perkins, 13 Fed. Rep. in.and note; McLean v. Clark, 23 Fed. Rep. 861 ; Consolidated Bunging Apparatus Co. v. American Process Fermentation Co., 24 Fed. Rep. 658; Wighton v. Brainerd, 28 Fed. Rep. 29 ; Ryan v. Gould, 32 Fed. Rep. 754; Cleaver v Traders' Ins. Co., 40 Fed. Rep. 863; Hunter v. In- ternational R. Co., 28 Fed. Rep. 842; Winegar v. Cahn, 29 Fed. Rep. 676; Stimpson v. Brook, 3 Blatchf. (U. S.) 456; Gorse v. Parker, 36 Fed. Rep. 840. On depositions before the com- missioners in proceedings to distrib- ute funds in court. James Dalzell's Sons & Co. -v. The Daniel Kaine, 31 Fed. Rep. 746. 291 Costs. ADMIRALTY. Costs. Bill of Costs. The bill of costs is taxed by the clerk subject to review by the judge, and is included in and forms a portion of the Clerk's Fees. By sec. 828 Rev. Sts. the clerk is allowed fees for his various services in the progress of a suit, such as issuing process and subpoenas, fil- ing papers, administering oaths, certi- fying records on appeal, etc. In U. S. courts subpoenas are always issued by the clerk and not by the proctor. The clerk is also entitled to a commission on moneys deposited in and paid out of the registry of the court. Clerk's costs considered in the Yacht Siren, 9 Ben. (U. S.) 194 ; Schooner F. Merwin, 10 Ben. (U. S.) 403 ; Cavender v. Cavender, 10 Fed. Rep. 828. Com- missions on moneys deposited in bank. Ex p. Prescott, 2 Gall. (U. S.) 146. General objections to his costs not considered. Dedekam v. Vose, 3 Blatchf. (U. S.) 153- fees collected from United States. Hill v. U. S., 40 Fed. Rep. 441 ; Erwin v. U. S., 37 Fed. Rep. 470 ; Jones v. U. S., 39 Fed. Rep. 410. Charge for note of issue and making up record. The Alice Tainter, 14 Blatchf. (U. S.) 225; The Thomas Fletcher, 24 Fed. Rep. 481; Blain v. Home Ins. Co., 30 Fed. Rep. 667. Attendance in court. Goodrich v. U. S., 35 Fed. Rep. 193. Marshal's Fees. By sec. 829 Rev. Sts. U. S., the marshal is entitled to fees for attaching property, serving process, and the expenses incident to keeping and selling property. He is also entitled to poundage when the claim is settled by the parties, and on a levy under execution. Keeper's fees allowed. U. S. v. 300 Barrels of Alcohol, i Ben. (U. S.) 72. Although notified not to put keeper in charge. Canal Boat Independent, 9 Ben. (U. S.) 489. Although private keeper aboard. The San Jacinto, 30 Fed. Rep. 266. Keeper's fees dis- allowed day and night fees. The Captain John, 41 Fed. Rep. 147. Two dollars and fifty cents per day not necessarily limit of charge for keeper's fees. The Perseverance, 22 Fed. Rep. 462 ; The Nellie Peck, 25 Fed. Rep. 463. Wharfage. Schooner F. Merwin, 10 Ben. (U. S.)4O3. Dry-dock charges. Steamboat Novelty, 9 Ben. (U. S.) 195. Auctioneer's fees. The John E. Mul- ford, 18 Fed. Rep. 455. Retaining keeper on board after suit settled. The J. W. Dennis, 19 Fed. Rep. 799. Same vessel held under differ- ent processes. Steamship Circas- sian, 6 Ben. (U. S.) 512. Actual travelling expenses in lieu of mileage. The Wavelet, 25 Fed. Rep. 733. Pre- servation of property. The George- anna, 31 Fed. Rep. 406. Goods at- tached in warehouse. Jorgensen v. 3173 Casks of "Cement, 40 Fed. Rep. 606 ; Steamship Russia, 5 Ben. (U. S.) 84 ; Steamship Acadia, 10 Ben. (U. S.} 482. Commission. The Clintonia, n Fed. Rep. 740 ; Robinson v. 15,516 Bags of Sugar, 35 Fed. Rep. 603. The Morgan City, 38 Fed. Rep. 572. Com- mission not allowed. The Colorado, 21 Fed. Rep. 592. Commissioner's and Witnesses' Fees. Commissioners (sec. 847 Rev. Sts. U. S. ) are also entitled to fees for perform- ing the services rendered by them in an admiralty suit, usually on references; and witnesses' fees are taxable by sec. 848 Rev. Sts. U. S. Commissioner's fee chargeable though parties do not appear. The Wavelet, 25 Fed. Rep. 733. Fees of three commissioners. Young v. Mer- chants' Ins. Co., 29 Fed. Rep. 275. Testimony written by person other than commissioner. Schooner F. Merwin, 10 Ben. (U. S.) 403. Notary's, charge for depositions. Id. One charge for issuing summons for seamen's wages. Kelly v. The Topsy, 45 Fed. Rep. 486. Amount larger than three dollars. Doughty v. West, 8 Blatchf. (U. S.) 107. State officers acting as commissioners. Jerman v. Stewart, 12 Fed. Rep. 271. Bill of commissioner's fees. Beckwith v. Easton, 4 Ben. (U. S.) 357. Witness fees taxable though witness not examined. Clark v. American Dock, etc., Co., 25 Fed. Rep. 641. Must show actual payment. Beckwith v. Easton, 4 Ben. (U. S.) 357 ; The Highlander, 19 How. Pr. (N. Y.) 343. Travel 100 miles, unless distance wholly within district. The Syracuse, 36 Fed. Rep. 830 ; Buffalo Ins. Co. -v. Providence, etc.,S. S. Co., 29 Fed. Rep. 237 ; Beckwith v. Easton, 4 Ben. (U. S.) 357 ; Steamship Leo, 5. Ben. (U. S.) 486 ; Eastman v. Sherry, 37 Fed. Rep. 844 ; The Vernon, 36 Fed. Rep. 113. Court may allow mileage for more than 100 miles. Smith v. Chicago, etc., R. Co., 38 Fed. Rep. 292 Limitation of Liability. ADMIRALTY. Generally. decree against the losing party ; it is filed with the papers in the cause. 1 XXIX. LIMITATION OF LIABILITY 1. Generally. The Revised Statutes 2 provide that a shipowner shall not be liable in cases of loss by fire on a vessel ; 3 and that in cases where damage has been done, occasioned, or incurred without the privity or knowledge 4 of 321. Witness from without state. U. S. v. Sanborn, 28 Fed. Rep. 299 ; Cahn v. Monroe, 29 Fed. Rep. 675 ; Haines v. McLaughlin, 29 Fed. Rep. 70. Fees taxable throughout district. Sims v. Schult, 40 Fed. Rep. 143 ; Anonymous, 5 Blatchf. (U. S.) 134 ; Steamship Leo, 5 Ben. (U. S.) 486. Taxable though deposition taken. Beckwith v. Easton, 4 Ben. (U. S.) 357. Party as witness. Schooners Eliza- beth and Helen, 4 Ben. (U. S.) 101 ; Hussey v. Bradley, 5 Blatchf. (U. S.) 210 ; Tuck v. Olds, 29 Fed. Rep. 883. Witness in more than one case. Young v. Merchants' Ins. Co., 29 Fed. Rep. 273 ; Archer v. Hartford Fire Ins. Co., 31 Fed. Rep. 660 ; The Vernon. 36 Fed. Rep. 113. Money actually paid, tut in excess of statutory fees, not taxable. Leary v. The Miranda, 40 Fed. Rep. 607. Mileage of witnesses may be charged, though their deposi- tions might have been taken. Hunter v. Russell, 59 Fed. Rep. 964. How mileage computed. Id. Stenographer's Fees. Stenographer's fees are not taxable except by consent of the parties or order of the court. Bridges v. Sheldon, 18 Blatchf. (U. S.) 508 ; The E. Luckenbach, 19 Fed. Rep. 847. Cost of Printing Other Expenses. The necessary cost of printing is also taxable, and ordinarily any expense incurred under a rule or order of the court may be charged against the losing party. Copies. Yale Lock Mfg. Co. v. Colvin, 14 Fed. Rep. 269; Hussey v. Bradley, 5 Blatchf.(U.S.) 210; Dennis v. Eddy, 12 Blatchf. (U. S.) 195. Printed papers. Dennis v. Eddy, 12 Blatchf. (U. S.) 195. Commission. The Frisia, 27 Fed. Rep. 480. Map. The Vernon, 36 Fed. Rep. 113. Sur- veys. Tuck v. Olds, 29 Fed. Rep. 883. Auctioneer. The John E. Mul- ford, 18 Fed. Rep. 455. Telegrams, postage. Hussey ZA Bradley, 5 Blatchf. {U. S.)2io. Searching title of sureties. Simpson v. no Sticks of Timber, 7 Fed. Rep. 243. Libellant Recovering less than $300. When a libellant, on his own appeal, recovers less than the sum or value of $300, exclusive of costs, he shall not be allowed, but, at the discretion of the court, may be compelled to pay costs. Rev. Sts. sec. 968. Costs Several Libels Filed. When several libels are filed against vessel and cargo which might legally be joined in one libel, only one bill of costs can be taxed to the libellants, unless special cause for libelling the vessel separately is satisfactorily shown on motion in open court. See The Julia, 57 Fed. Rep. 233. Where two libels were filed for the same collision, but not in form of cross-libels, and the suits were heard together, the successful party taxed two bills of costs, except docket fee. The Medusa, 47 Fed. Rep. 821. But allowance may be made on one libel or information for the costs inci- dental to several claims. Sec. 978 Rev. Sts. Cause Dismissed for Lack of Jurisdic- tion. Where a cause is dismissed for lack of jurisdiction, no costs are al- lowed. The McDonald, 4 Blatchf. (U. S.) 477; Wenberg v. A Cargo of Mineral Phosphate, 15 Fed. Rep. 285. But this rule does not apply when the lack of jurisdiction is only disclosed by sub- sequent pleadings or evidence, after the parties are in court. The City of Florence, 56 Fed. Rep. 236 ; Lowe v. Canal-boat Benjamin, I Wall. Jr. 187. 1. Rev. Sts. 983. 2. Act of Congress of March 3, 1851, the provisions of which are now em- bodied in 4282, 4283, 4284, and 4285 of the Revised Statutes. 3. Vessel Entitled to Immunity. The vessel itself is entitled to immunity from liability for a loss by fire, al- though its ownership may have changed since the damage. The Rapid Transit, 52 Fed. Rep. 320. 4282 does not release a shipowner from liability to contribute in general aver- age. The Roanoke, 59 Fed. Rep. 161. 4. See The Maria & Elizabeth, n Fed. Rep. 520; Sumner v. Caswell, 20 Fed. Rep. 249; The City of Para, 44 Fed. Rep. 689; The Anna, 47 Fed. Rep. 293 Limitation of Liability. ADMIRALTY. Generally. the shipowner, such owner shall not be held liable therefor beyond the value of his interest in such vessel and her freight pending. 1 This act applied only to torts, but was later extended to cover the general debts of a ship. If, therefore, a shipowner is sued or his ship libelled for a claim of loss arising under such circumstances, it is sufficient for him in his answer, after pleading to the merits, if he desires, to set up the provisions of the statute and pray that the court decree, if he is to be held liable for the loss, that he be declared not liable beyond the value of his vessel and her freight pending, or his interest in them. 3 525; Whitcomb v. Emerson, 50 Fed. Rep. 128; Quinlan v. Pew, 56 Fed. Rep. in; Matter of Meyers Excursion, etc., Co., 57 Fed. Rep. 240; Lord v. Good- all Steamship Co. ,4 Sawy. (U. S.)2gg. Passenger's baggage is not merchan- dise. The Marine City, 6 Fed. Rep. 413. Claim for unearned freight. In re Liverpool, etc., Steam Co., 3 Fed. Rep. 168. 1. Ben. Adm. (3d ed.) 554-584. The act includes claims for personal injuries. Steam Propeller Epsilon, 6 Ben. (U. S.) 378; Butler v. Boston SS. Co., 130 U. S. 527 ; In re Petition of Long Island, N. S., P., etc., Co., 5 Fed. Rep. 599; The Amsterdam, 23 Fed. Rep. 112. Where claims in excess of the value of the vessel were made and the shipowner filed a petition for limitation, and claimants thereupon reduced their claims, it was held that the jurisdiction, once ac- quired, could not be so divested. The Tolchester, 42 Fed. Rep. 180. Applies to vessels navigating inland waters, when. In re Petition of Long Island, N. S., P., etc., Co., 5 Fed. Rep. 599. Not to steam pleasure yacht. The Mamie, 5 Fed. Rep. 813. Not to vessel solely employed on Hudson River. Tug Sears, 8 Fed. Rep. 365. (But the three last-named decisions were made be- fore the passage of the Act of June 19, 1886.) The court cannot take jurisdic- tion of a petition for limitation of liability where it would not originally have had cognizance in admiralty of the cause of action. Ex p. Phenix Ins. Co., 118 U. S. 610. Elwell v. Geibei, 33 Fed. Rep. 71. The statute does not protect a shipowner against a claim on which the vessel has been seized and released on bond, although the vessel be subsequently lost and a peti- tion in limitation thereupon filed. The Percy Birdsall v. The Invertrossacks, 55 Fed. Rep. 683. " Privity or knowl- edge." Lord v. Goodall, etc., Co., 4. Sawy. (U. S.) 299; Craig v. Continental Ins. Co., 26 Fed. Rep. 292; The Anna, 47 Fed. Rep. 525; Matter of Petition of Myers Ex'n Co., 57 Fed. Rep. 240, aff. 61 Fed. Rep. 109; Quinlan v. Pew, 56 Fed. Rep. in. Passage money and freight prepaid at the port of departure are not "freight pending." The Main v. Williams, 152 U. S. 122. Value. The value can be ascer- tained by an appraisal, and a stipula- tion for value given for such appraised value, as in ordinary cases ; and the suit will proceed in regular course, though the shipowner is protected by the provisions of the statute. 2. L. 1884, ch. 121, 18; 23 Sts. at L. p. 57; L. 1886, ch. 421, 4; 26 Sts. at L. p. 80. The Scotland, 105 U. S. 24; The Manitoba, 122 U. S. 100; The Doris Eckhoff, 30 Fed. Rep. 140. The statutes may be brought up by excep- tions to the libel. Miller v. O'Brien, 35 Fed. Rep. 779. If there is but a single claim, it has been held that this defense may be set up in an answer to an action at law, and hence that an independent proceeding in admiralty would not be allowed, or a stay of the case at law issued. The Rosa, 53 Fed. Rep. 132. But this holding was dis- approved by the Circuit Court of Ap- peals for the First Circuit, in Quinlan v. Pew, 56 Fed. Rep. in. Petitioner is liable for interest on his stipulation from the date thereof. The Favorite, 12 Fed. Rep. 213. Validity Exemptions. The act of June 19, 1886, extending the bene- fits of limited-liability legislation to all vessels used on lakes and rivers or in inland navigation, including canal-boats, barges, and lighters, is valid. In re Garnett, 141 U. S. i; The Katie, 40 Fed. Rep. 480; Butler v. Bos- ton, etc., SS. Co., 130 U. S. 527. But 294 Limitation of Liability. ADMIRALTY. The Proceeding-. 2. The Proceeding a. GENERALLY. But it often happens not only that the vessel has done damage exceeding her value without the privity or knowledge of her owner, but that the claims arising from such damage are numerous, or are largely unknown, or that suits are brought thereon in different courts, or the owner sued in the courts of a state and the vessel libelled in the admiralty court. The rules of the Supreme Court have provided a method, under the above-mentioned law, by which the whole matter can be heard in a single proceeding, and all other proceedings enjoined, and, if the owner succeeds in establishing his position, all possible claimants against him on account of this particular damage and loss may be forever barred, and pending suits perpetually stayed. 1 Such is a proceeding in limitation of liability taken in the admi- ralty courts of the United States. 2 the act is not retroactive. Chappell v. Bradshaw, 35 Fed. Rep. 923. The later statutes do not exempt a ship- owner from liability on his personal contracts. The Amos D. Carver, 35 Fed. Rep. 665; McPhail v. Williams, 41 Fed. Rep. 61; The Giles Loring, 48 Fed. Rep. 471; Douse v. Sargent, 48 Fed. Rep. 695; Laverty v. Clausen, 40 Fed. Red. 542; Gokey v. Fort, 44 Fed. Rep. 364. Nor does the statute ex- empt from liability for the destruction of structures on land destroyed by fire communicated by a vessel. Goodrich Transp. Co. v. Gagnon, 36 Fed. Rep. 123; Ex p. Phenix Ins. Co., 118 U. S. 610. Applicable to British Corporation. A British corporation may take advan- tage of the act, though the accident happened within English jurisdiction. Levinson z/. Oceanic Steam Nav. Co., 17 Alb. L. J. 285. See In re Leonard, 14 Fed. Rep. 53; The State of Vir- ginia, 60 Fed. Rep. 1018. 1. Adm. Rules 54-58; Blacks. South- ern Pac. R. Co., 14 Sawy. (U. S.) 120. But when, in a case of collision, both vessels are in fault, the statute can- not be applied until the balance of damage has been struck; and then the party against whom the decree passes may claim the benefit of the statute in respect to the balance which he is decreed to pay. The North Star, 106 U. S. 17. 2. Kales of the Southern and Eastern Districts of New York in Proceedings to Limit Liability. Rule 73. "Petitions or libels to limit liability must state: (1) the facts showing that the applica- tion is properly made in this district; (2) the voyage on which the demands sought to be limited arose, with the date and place of its termination ; the amount of all demands, including all unsatisfied liens or claims of liens on contract or on tort, arising on that voy- age, so far as known to the petitioners, and what suits, if any, are pending thereon; whether the vessel was dam- aged, lost, or abandoned, and, if so, when and where; the value of the ves- sel at the close of the voyage, or, in case of wreck, the value of her wreck- age, strippings, or proceeds, if any, as nearly as the petitioners can ascertain, and where and in whose possession they are; also the amount of any pend- ing freight, recovered or recoverable. If any of the above particulars are not fully known to the petitioner, a state- ment of such particulars, according to the best knowledge, information, and belief of the petitioner, shall be suf- ficient. " Rule 74. " If a surrender of the ves- sel is offered to be made to a trustee, the libel or petition must further show whether there is any prior paramount lien on the vessel, and whether she has made any, and, if so, what voyage or trip since the voyage or trip on which the claims sought to be limited arose, and any existing lien or liens, maritime or domestic, arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; also the special facts on which the right to surrender the vessel is claimed, notwithstanding such subsequent trip or voyage, and whether the vessel sustained any in- jury upon, or by reason of, such sub- sequent voyage or trip. 295 Limitation of Liability. ADMIRALTY. The Proceeding. b. THE PETITION OR LIBEL. The shipowner first files a libel or petition, setting forth the casualty, and its happening without his privity or knowledge, and alleging that the damages are in excess of the amount of his interest in the vessel and her pending freight, and that claims therefor have been made upon him or his vessel, or that he is in fear that such claims will be made. 1 The " Upon surrender of the vessel no fi- nal decree exempting from liability will be made until all such liens as may be admitted or proved, prior to such final decree, to be superior to the liens of the claims limited, shall be paid or se- cured independently of the property surrendered, as may be ordered by the court; and the monition in cases of surrender shall cite all persons having any claim upon the vessel to appear on the return day or be defaulted, as in ordinary process in rent." Rule 75. " If , instead of a surrender of the vessel, an appraisement thereof be sought for the purpose of giving a stipulation for value, the libel or peti- tion must state the names and ad- dresses of the principal creditors and lienors, whether on contract or in tort, upon the voyage on which the claims are sought to be limited, and the amounts of their claims, so far as they are known to the petitioner, and the attorneys or proctors in any suit there- on; or if such creditors or lienors be very numerous, then a sufficient num- ber of them properly to represent all in the appraisement; and notice of the proceedings to appraise the property shall be given to such creditors as the court shall direct, and to al! attorneys and proctors in such pending suits." Rule 76. " The stipulation for value upon such appraisement shall be given with sufficient sureties and upon justi- fication as required under these rules in actions in rem, and shall provide for the payment of the appraised amount with interest from the close of the voyage, unless otherwise ordered by the court." Rule 77. "If issue is taken by the pleadings upon the right of the peti- tioners to any limitation of liability, or upon the liability of the petitioners for the claims alleged against them, such issue will not be heard and de- termined until the publication of the monition, unless otherwise ordered on application to the court. " Rule 78. " Proof of claims presented to the commissioner shall be made by or before the return day of the moni- tion by affidavit specifying the na- ture, grounds, and amount thereof, the particular dates on which the same accrued, and what, if any, cred- its were given thereon, and what pay- ments, if any, have been made on ac- count; with a bill of particulars giving the respective dates and amounts, if the same consists of several different items. Such proof shall be deemed sufficient, unless within five days after the return day of the monition, or after interlocutory decree in case of issue joined by answer to the petition, or within such further time as may be granted by the court, the allowance of the claim shall be objected to by the petitioner or by some other creditor filing a claim, who shall give notice in writing of such objection to the commissioner and to the proctors of the claim objected to, if any. Any claim so objected to must be estab- lished by further legal prima-facie proof on notice to the objecting party, as in ordinary cases; but any creditor desiring to contest the same upon any specific defense must, with his notice of objection, or subsequently, if al- lowed by the commissioner or the court, state such defense, or be pre- cluded from giving evidence thereof ; and the unsuccessful party to such contest may be charged with the costs thereof. The commissioner shall, on the return day of the monition, file in open court a list of all claims pre- sented to him." 1. Proceedings. See The Rose Cul- kin, 52 Fed. Rep. 332. It is unnecessary to aver or prove that the claims against the vessel are in excess of her value. The Garden City, 26 Fed. Rep. 770. The proceeding may be instituted before any suit is brought against the owner or his vessel. Ex p. Slayton, 105 U. S. 451 ; Steamship John Bram- all, 10 Ben. (U. S.) 511; Black v. Southern Pac. R. Co., 39 Fed. Rep. 565. Claims and Claimants. The Benefac- tor, 103 U. S. 239. 296 Limitation of Liability. ADMIRALTY. The Proceeding. petitioner thereupon claims the benefit of the statute, and offers to surrender the vessel during the pendency of the proceeding, to a trustee to be appointed by the court ; or else he asks for an appraisal, offering to deposit the appraised amount in court, or give bonds. The libel also prays for the appointment of a com- missioner to receive proof of claims. The libel may simply ask that the owner be not held liable beyond the value of his vessel, surrendering such value without contest to any claimants ; or it may contest the liability of the owner to any extent whatever, on the merits, while claiming the benefits of the statute, if the court finds that the contention of entire exemption from liability is untenable. Filing Libel Stipulation. The libel should be filed in the district in which the vessel is found, or in the district in which the owner resides and may be sued. 1 It is accompanied by the usual stipu- lation for costs. c. PROCEEDINGS UNDER THE LIBEL Trustee. On the filing of the libel the court may appoint a trustee, to whom the libel- lant may turn over his vessel. 2 If Appraisal is Asked the court appoints appraisers who value the vessel and pending freight, whereupon libellant pays the appraised amount into court, or gives a stipulation therefor. 3 1. Adm. Rule 57. See The Alpena, 8 Fed. Rep. 280; In re Leonard, 14 Fed. Rep. 53. The proceeding must originate in the District Court. El- well v. Geibei, 33 Fed. Rep. 71, a pro- ceeding in equity, wrongly reported as in admiralty; The Mary Lord, 31 Fed. Rep. 416. Where the jurisdiction of the District Court has attached, it is exclusive. Black v. Southern Pac. Co., 39 Fed. Rep. 565; In re Morrison, 147 U. S. 14. 2. Turning Over Vessel Interest. This is done by ordinary bill of sale, or, better, by an instrument reciting the proceeding, and stating that the transfer is made x in accordance with such proceeding. It is not necessary that the vessel be placed in custody of the marshal. In re Morrison, 147 U. S. 14. Trustee may sell to prevent de- struction. The Mendota, 14 Fed. Rep. 358. The owner must surrender the vessel free from previous liens. The U. S. Grant, 45 Fed. Rep. 642. When owners surrender a vessel, they can- not be required to add interest on her appraised value from the time the lia- bility was incurred, though they have long delayed the surrender. But when they elect to give a bond for the appraised value, they may be required to provide for interest until such time as the money is paid. The Battler, 58 Fed. Rep. 704; In re Harris, 57 Fed. Rep. 243. 3. The Anna, 47 Fed. Rep. 525; The H. F. Dimock, 52 Fed. Rep. 598; The City of Norwich, i Ben. (U. S.) 89; Norwich, etc., Transp. Co.'s Petition, 8 Ben. (U. S.) 312; The Doris Eckhoff, 30 Fed. Rep. 140; The U. S. Grant, 45 Fed. Rep. 642; Gokey v. Fort, 44 Fed. Rep. 364. The court may require that the bond include a stipulation for in- terest. In re Harris, 57 Fed. Rep. 243. The price realized at a marshal's sale of a vessel is not conclusive as to her value, and the court, on cause shown, may require a bond for the actual value, as proved. The U. S. Grant, 45 Fed. Rep. 642. The voyage of a vessel, sunk in col- lision, terminates on such sinking, and the owner's liability is measured by her value as she lies at the bottom, and is not affected by the fact that she is afterwards raised and repaired. The City of Norwich, 118 U. S. 468; The Scotland, 118 U. S. 507; The Great Western, 118 U. S. 520. See The Anna, 47 Fed. Rep. 525. The value is the actual value of the vessel, without any deduction on ac- count of liens. The Leonard Richards, 41 Fed, Rep. 818. 297 Limitation of Liability. ADMIRALTY. The Proceeding. Proof of Claims. The court also appoints a commissioner to- receive proof of claims, and issues to the marshal its monition concerning the notification of claimants. 1 staying Proceedings. An injunction order is also made at the same time, staying all proceedings already begun, and the commence- ment of any others, until the final disposition of the proceeding in question. 2 d. PROOF OF CLAIMS AND RETURN OF MONITION. Being notified, claimants appear before the commissioner, and make proof of their claims, and the commissioner returns to the court the complete list thereof. 3 On the return of the monition, also, claimants should appear in court and answer the libel or obtain time to answer, and the peti- tioner should take the default of all claimants who do not so appear. The libel being answered, the cause goes upon the calendar, and is heard on evidence as in ordinary cases. e. DECREE. If the court decrees that the petitioner is not en- titled to the limitation of liability which he claims, a decree will be made dismissing the petition, dissolving the injunction, and allowing claimants to proceed against the petitioner or his vessel. Insurance on a vessel is not part of before a commissioner, in a case the owner's interest to be surrendered. The City of Norwich, 118 U. S. 468; The Scotland, 118 U. S. 507; The Great Western, 118 U. S. 520; The Rapid Transit, 52 Fed. Rep. 320. When the vessel is lost and no freight is earned, the owner is not liable for freight pending. Id. 1. Court's Monition to Marshal. This directs him to publish a notice once a day for 14 days, and thereafter once a week until the expiration of not less than three months from the date of the first publication, citing all persons having claims by reason of the casu- alty in question to appear before the commissioner and make proof of such claims at or before a certain time named in the writ; and also to ap- pear in court and answer the allega- tions of the libel, if the claim of the libel is contested. The court, in its discretion, may also direct further no- where petitioner is seeking to limit his liability, and is also claiming, on the merits, an absolute exemption from all liability, is for each claimant to file with the commissioner an affi- davit setting forth his claim and the amount thereof. The commis- sioner should return a list of these to the court, on or before the return day of the monition, and the peti- tioner should thereupon, on entering his order for the default of all persons not appearing, incorporate into it a provision that all proceedings before the commissioner be stayed until the hearing in court on the merits. Un- less this method is followed, claimants may be put to minute proof of the claims before the commissioner, with questions of priority, etc., before it is settled that they have any claim at all. If the petitioner is declared liable by the court, if only to the extent of tice to be given, through' the post- the fund, the matter may be referred office or otherwise. 2. See Providence, etc., Co. -v. Hill Mfg. Co., 109 U. S. 578; Black v. Southern Pac. R. Co., 39 Fed. Rep. 565- Copy of Injunction Order. A copy of this injunction order must be served on all known claimants with the moni- tion. Adm. Rules 54-57. 3. Practice before Commissioner. The nroper practice, on proof of claims back to the commissioner, to hear for- mal proof as to the claims, with such opposing evidence as other claimants or the petitioner may adduce, as in ordinary references on interlocu- tory decree. When petitioner does not contest the right of claimants to the fund, but only seeks to. limit his liability to such fund, the str ! ct proof of claims may be as well before as. after the hearing in court. 298 Prize. ADMIRALTY. Generally. If the decision is that the petitioner is not in fault for the dam- age complained of, the court makes a decree to that effect, and the injunction against the commencement or continuance of the pro- ceedings is made perpetual, and the trustee is directed to return his boat to the petitioner, or the clerk directed to return to peti- tioner the money deposited in court, or an order entered cancel- ling petitioner's stipulations. 1 If the decision of the court be that petitioner is liable, but is nevertheless entitled to the benefit of the statute, a decree will be made that the petitioner pay into court the amount called for by the stipulation, if the money be not already so deposited, and that the fund be distributed among the various claimants in proportion to their claims, or that the trustee sell the vessel and distribute the proceeds in like manner. 2 f. COSTS. Costs in limitation proceedings are usually paid out of the fund. 3 The costs taxable in such cases are the same as are taxable in ordinary cases. 4 XXX. PRIZE 1. Generally. When vessels or other property are captured in time of war, or in time of peace are seized as pi- Award of Costs. When the petitioner is held not entitled to his limitation, costs go to the claimants; when the limitation is allowed him, even though he be held liable on the merits, peti- tioner is entitled to costs against the fund, though claimants may tax their disbursements against it. When peti- tioner is declared exempt from all lia- bility, it would seem that claimants are liable to pay petitioner's costs on their stipulations for costs, filed with, their answers. In some cases, how- ever, costs have been taxed against the fund in favor of petitioner in such cases. The shipowner may be held to pay costs beyond the amount of his stipulation, if he opposes and defends. The Wanata, 95 U. S. 600; In re Harris, 57 Fed. Rep. 243. Where the decree is against the owners, they are liable in solido for costs. The Giles Loring, 48 Fed. Rep. 463. A claimant who desires to contest the liability of a vessel, sold by a trustee under the Limited Liability Act, and gives a stip- ulation for costs under Admiralty Rule 26, is liable only for the costs properly incident to such contest. The Ver- non, 36 Fed. Rep. 113. 4. When one enjoined from continu- ing a state court proceeding, and brought into an admiralty court by limitation proceedings, may recover costs incurred in state court. In re The Garden City, 27 Fed. Rep. 234- 1. Norwich, etc., Transp. Co.'s Pe- tition, 10 Ben. (U. S.) 193. Or any sur- plus of the fund over the amount of claims filed may be returned to peti- tioner. See Wallace v. Providence, etc., SS. Co., 14 Fed. Rep. 58. 2. Reference Back to Commissioner. If there are questions of priority of payment among claimants, or if peti- tioner desires to contest any of the claims, the matter is ordinarily re- ferred back to the commissioner who originally received the claims, to hear and decide such questions and report to the court. Meantime the petitioner may enter an order that he be exempted from all liability beyond such fund, and that any further suits, actions, or proceedings, unless against the fund, be perpetually enjoined. 3. Adm. Rule 53. See Norwich, etc., Transp. Co.'s Petition, 10 Ben. (U. S.) 194, 17 Blatchf. (U. S.) 221, 118 U. S. 468. But the practice adopted in the foregoing case, where the successful petitioner taxed a docket fee for each claimant, is not now followed. Peti- tioner is ordinarily allowed one docket fee on hearing and one on reference only. The provision that costs shall be paid out of the fund applies only to cases where petitioner, after having established his right to limitation, does not contest the liability of his vessel. The Leonard Richards, 41 Fed. Rep.8i8; Inre Harris, 57 Fed. Rep. 243. 299 Prize. ADMIRALTY. Prize Commissioners. rates or slavers, or violators in any way of the law of nations, their condemnation as prize has always been required, in civilized coun- tries, before the captured property, or its proceeds, can be appro- priated by the captors. 1 Of such proceedings the United States District Court has cog- nizance. 2 2. Captor's First Duty. Therefore, when a captured vessel, or other captured property, is brought into a port of the United States, the first thing necessary for the captor to do is to notify the judge of the District Court, or the prize commissioners ap- pointed by such court, of that fact, and of the place where the property can be found. 3 3. Prize Commissioners. In time of war 4 there are permanent commissioners appointed by the judge of the District Court at each prominent seaport. 5 They are called prize commissioners, and it is their duty to attend to the preliminary matters in cases of prize, as herein below set forth. 6 1. Formal Proof that Vessel Subject to Forfeiture Necessary. It must appear as matter of formal proof that the ves- sel actually was an enemy's vessel, or otherwise subject to be forfeited by the laws of war or of nations. 2. Jurisdiction. This condemnation proceeding, with its allied actions, has always been peculiarly within the jurisdiction of the admiralty. The United States District Court when sitting in such a proceeding becomes a court of prize, as in ordinary ad- miralty cases it is an instance court, and in admiralty matters involving crime a criminal court. See Bouvier L. Diet., title Instance; Ben. Adm. sec. 330. Practice. Practice in prize cases is considered in Note II in the appen- dix to vol. i of Wheaton's Reports, i Wheat. (U. S.) 494. 3. Prize Rule 2. 4. In Peace. In time of peace these commissioners are appointed only on occasion arising to call for their ser- vices. 5. Number, etc., of Commissioners. They are not to exceed three in num- ber, one of whom must be a retired naval officer. Rev. Sts. sec. 4621; Prize Rule i. 6. Duty of Commissioners. On receiv- ing a notification of the arrival of a prize, or without any notification, if the commissioners become in any way aware of the fact, it is their duty to go at once to the captured property, ex- amine its condition, and see that it is in a place of safety; to take possession of all ship's papers, if the prize be a vessel, and documents of every kind relating to the captured property, and seal it up, by securing a vessel's hatches, or in any other way if the prize be other property; and such seals may not be thereafter broken without the special order of the court, except in case of fire or tempest, or of abso- lute necessity of some kind. Prize Rules 3-6. If the Property is Perishable, the com- missioners must so report to the court, in order to secure its immediate sale. Rev. Sts. sees. 4622, 4627; Steamer Ella Warley, Blatchf. P. C. 288; The Cheshire, Blatchf. P. C. 165. Taking Possession of Ship's Docu- ments. This taking possession of all the documents of a ship is of the ut- most importance, because in cases of prize all the evidence to convict the vessel is drawn primarily from the ship herself and the testimony of those on board of her; and ordinarily a case of prize is decided only upon such proof, unless that proof shows that the liability to forfeiture is doubtful. The SirWm. Peel, 5 Wall. (U. S.)5iy; The Georgia, 7 Wall. (U. S.) 32; The Dos Hermanos, 2 Wheat. (U. S.) 76; The Pizarro, 2 Wheat. (U. S.) 227; The Amiable Isabella, 6 Wheat. (U. S.) i; The Luminary, 8 Wheat. (U. S.)4O7; D. C. Prize Rule 46. Duty of Master. The master of the 300 Prize. ADMIRALTY. Filing the Libel. 4. Examinations in Preparatorio. Within a reasonable time after the arrival of the prize in port, the captor must produce before the commissioners certain of the persons who were captured with or who claim the prize. 1 When the witnesses are before the commissioners, the latter must proceed to examine them on the standing interrogatories. 3 This examination is called the examination in preparatorio. Return of Answers. Where all the witnesses have answered the entire list of questions, the answers to the interrogatories are re- turned to the office of the clerk of the District Court, under the seal of the commissioners, together with all the ship's documents. 3 5. Filing the Libel. At any time after the arrival of the prize in port, and before or during the examination in preparatorio, a libel in rem must be filed against the prize. 4 And it must be filed within a reasonable time. 5 capturing vessel, or some one who was present at the taking of the prize, must therefore make an affidavit that all documents taken from the prize have been delivered to the commis- sioners, or, if they have not, the rea- son why, and also that if before final condemnation or acquittal any other papers are found, they shall also be de- livered to the commissioners. 1. Rev. Sts. sec. 4625. Three days. Prize Rule 12. Three or four persons, if there be so many of the company who were captured with or who claim the property; and if the capture be a vessel, the master and mate, or super- cargo, must always be two. Id. Effect of Captor's Neglect. If the cap- tor has not given notice of arrival as above stated to be required, or does not produce the captured crew, any claimant of the prize may give the notice to the judge or commissioners, and the commissioners must at once notify the captor to forthwith produce the documents and the witnesses; and if the captor still neglect to do so, the commissioners shall certify the facts to the judge, who will take proper ac- tion thereon. Prize Rule 22. 2. Prize Rule 12. History and Nature of Interrogatories. These interrogatories are very old, de- scending from the English prize courts, and are the same for all the district courts of this country; they consist of a minute inquisition into the relation of the witness to the prize, the vessel, her cargo and voyage, and the circum- stances of the capture. Practice concerning Interrogatories. No other interrogatories besides the standing interrogatories are allowed to be put by the commissioners; the wit- ness may not see the interrogatories,, documents, or papers, or consult with counsel or with any person interested without the special order of the court; and the claimant of the prize, has no right to object to questions, or to cross-examine, though he may be present at the examination. Rev. Sts. sec. 4622; Prize Rule 13. 3. Prize Rule n. 4. Filing the Libel Nature. This is the real beginning of the proceeding, the foregoing being regarded but as- preliminary thereto. Prize Rule -'24. Belts Pr. 72. This libel is filed by the United States attorney for the district, in the name of the United States, or in his own name, as district attorney, but on behalf of the United States, in cases where the capture has been made by a government vessel. The Palmyra, 12 Wheat. (U. S.) i; Jecker v. Montgomery, 18 How. (U. S.) no. When a private armed vessel has made the capture, the libel is filed by her master or owner, through his private proctor, on behalf of himself, his of- ficers and crew. The libel is in the ordinary form of an admiralty libel, setting forth the jurisdiction and the facts of the capture, and praying for the condemnation and forfeiture of the prize, and the distribution of her pro- ceeds. 5. Effect of Punctuality. If the libel is promptly filed by the captor, a. monition thereupon issues, returnable in ten days, and the mesne process under the libel is delivered to the mar- shal and executed as in any proceeding 301 Prize. ADMIRALTY. Further Proofs. 6. Proceedings on Return of Process. No Answer to a Libel in Prize Need be Filed, but the owner or any one interested in the captured property may appear in court and file a claim. 1 7. Decree by Default. The cause is placed on the calendar and comes on to be heard in regular order, on the libel and the evi- dence taken at the examination in preparatorio. If the property be not claimed, a decree of condemnation and sale is entered by default.'-* If, however, a claim be interposed, and on the libel and the claim and the answers to the standing interrogatories the court still has a doubt as to the propriety of condemning the property as prize, it will order further proofs. 3 8. Further Proofs. Further proofs are, as the name indicates, additional evidence tending to acquit or condemn the vessel. 4 When the case is reheard on such further proofs, the decision of the court is final. in forfeiture on the instance side of the court. Prize Rule 44. Effect of Tardiness. If this proceed- ing is not begun by the captor within -a reasonable time after the arrival of the prize, any claimant may move for a monition to show cause why such proceedings should not be commenced, or may institute an original suit for restitution, and in either case the monition shall be served on the district attorney and the Secretary of the Navy, and on such other persons as the court shall order to be notified. Rev. Sts. 4625. Reasonable Time. Twenty - four hours for notification, and two days for filing libel. D. C. Prize Rules 22, 23- 1. Prize Rule 42. Claim Must be Accompanied by Affidavit Pleading. The claim filed by one al- leging ownership of or interest in the property captured must be accom- panied by an affidavit, called a test affidavit, stating the facts respecting the claim, and its truth, and how the deponent stands connected with or ac- quired knowledge of it. Prize Rule 42. These are all the pleadings required ; and if the owner does not even claim, he may still be heard in court on the libel and the proofs afforded by the examination in preparatorio. Delivery of Prize Property. Prize property cannot be delivered to the claimant on any stipulation or secu- rity, except when there has been a de- cree of restitution from which the captors have appealed, or when the court has ordered further proofs; or when the claimant can satisfy the court that the property has some pe- culiar value to him independent of its market value. Rev. Sts. 4626; The Diana, 2 Gall. (U. S.) 93. 2. Unless Proof of Forfeiture Clear, Court Retains Proceeds. But even in such cases, unless the evidence is clear that the property is forfeited, the court will direct the proceeds to remain in its registry for a year and a day, to await a possible claimant. None appearing within that time, a decree of distribu- tion is entered as of course. 3. The Sally Magee, 3 Wall. (U. S.) 451- 4. Additional Plea or Answer Evi- dence. Further proofs are usually offered by claimant. And the claimant may now file a plea or answer, addi- tional to his claim, setting up any de- fense which may relieve the vessel from condemnation, and may obtain the release of his vessel on giving se- curity, and may examine witnesses to prove his allegations. And such evi- dence should be taken by depositions. Betts Pr. 77; The London Packet, 2 Wheat. (U. S.) 371. But no commission to take testimony can be issued to an enemy's country. On the other hand, the captor may be examined as a witness and may invoke further proof in the form of documents from other vessels, first obtaining the mandate of the court to do so, on af- fidavit specifying the materiality of such papers. Rule 30 ; The Anne, 3 Wheat. (U. S.)435. 302 Prize. ADMIRALTY. Damagei. 9. Distribution of Proceeds. The proceeds of a prize captured by a vessel of the navy belong to the captors, when the prize is of superior or equal force to the vessel making the capture; when of inferior force, one half is decreed to the United States and the other half to the captors. 1 After decree of condemnation the court will consider the claims of all vessels entitled to participate in the proceeds, and will hear evidence and make the proper decree of distribution. 5 * 10. Costs and Expenses. All costs and all expenses incident to the bringing in, custody, preservation, sale, or other disposal of the prize property, when allowed by the court, shall be a charge upon such property, and shall be paid out of the proceeds thereof, unless the court shall decree restitution free from such charge. 3 11. Damages. Damages may be awarded to the owner of the prize when the seizure is declared to be without probable cause. 4 And they may be awarded against the United States. 1. Capture by Privateers or under Letters of Marque. In cases of capture by privateers or under letters of marque the whole prize belongs to the captors, unless it shall be otherwise provided in the commissions issued to such ves- sels. Rev. Sts. 4630. 2. Method of Distribution. The method of distribution is governed by statute. Rev. Sts. sees. 4631, 4632, Contents of Decree. The decree must recite the amount of the gross proceeds of the prize, subject to the order of the court, the amount deducted therefrom for costs and expenses, and the amount remaining for distribution, and whether the whole of such residue is to go to the captors or one half to the captors and one half to the United States. Rev. Sts. sec. 4634. Appeal. And even if there be an ap- peal from the decree of condemnation, the District Court may still proceed to make the decree of distribution so far as to determine what share shall go to the captors, and what vessels are en- titled to participate therein. Rev. Sts. sec. 4637. 3. Rev. Sts. sec 4639. Unjustifiable Capture. Costs are also awarded against the captor when it ap- pears that the seizure was unjustifi- able. And such costs can be awarded against the United States when an un- justifiable capture has been made by a naval vessel. But in all such cases the unjustifiable nature of the seizure must plainly appear. When there was prob- able cause for the capture, costs will not be awarded against the captor, though the decree restore the property to the owner. The Thompson, 3 Wall. (U. S.) 155 ; The Marianna Flora, 11 Wheat. (U. S.) i. Restitution on Rightful Seizure. Where the seizure was rightful, and a decree of restitution was granted on causes subsequently arising, the dis- bursements were allowed against the vessel captured, and not against the United States. The Ambrose Light, 25 Fed. Rep. 408. Compensation of District Attorney and Prize Commissioners. The compensa- tion of the district attorney and of the prize commissioners, except the naval officer, are to be paid as costs in the cause. Rev. Sts. sec. 4646. Security for Costs. And the court may require any party, at any stage of the cause, and on claiming an appeal, to give security for costs. Rev. Sts. sec. 4638. 4. Probable Cause As to meaning of " probable cause," see Locke v. U. S., 7 Cranch (U. S.) 339. Recovery and Award of Damages. Such damages may be recovered by the claimant on the failure of an ordi- nary prize suit against the captured property, or may be awarded in an in- dependent suit brought against the captor or the capturing vessel for the purpose of recovering such damages. The Anna Maria, 2 Wheat. (U. S.) 327- Amount of Damages. The amount of the damages to be awarded is ascer- tained by a reference to commissioners 33 Prize. ADMIRALTY. Military Salvage. 12. Appeals. An appeal in all prize causes may be taken di- rectly to the Supreme Court. 1 13. Military Salvage on Recaptures. Cases of recapture are cases of prize, and American property recaptured before it has been condemned as prize by a foreign tribunal must be restored to its owners. 58 appointed by the court. The Anna Maria, 2 Wheat. (U. S.) 327. 1. Act March 3, 1891, sees. 5-26, Sts. at L. p. 826. Practice on Appeal Such appeal must be made within thirty days after the rendering of the decree appealed from, unless the court previously extends the time, for cause shown in the particular case ; and the Supreme Court may, if in its judgment the purposes of justice require it, allow an appeal in any prize cause, or allow any amendment, either in form or substance, if it appears that any notice of appeal or of intention to appeal was filed with the clerk of the District Court within thirty days next after the rendition of the final de- cree therein. Rev. Sts. sees. 1009, 4636. 2. Procedure. The procedure is the same as in ordinary cases of prize, but it must affirmatively appear to the court that the property has not been condemned abroad as prize before its recapture. Schooner Adeline, 9 Cranch (U. S.) 244; The Star, 3 Wheat. (U. S.) 78; The Ann Green, i Gall. (U. S.) 274. Restoration of Recaptured Property. If the recaptured property belonged to the United States, it is restored to it, and the treasury pays the salvage, costs, and expenses. The salvage takes the place of the prize money in ordinary prize cases. Pri- vate property is restored to its own- ers, upon their claiming and making the same payment. When the recap- tured property belongs to any person residing in a foreign couniry friendly to the United States, and by the laws of such country the property of a citizen of the United States would be restored under like circumstances of recapture, the prize is to be restored to its owner, upon his claim, on such terms as by the law or usage of such foreign government would be required of a citizen of the United States under like circumstances of recapture ; or, when no such law or usage is known, it should be restored upon the pay- ment of such salvage, costs, and ex- penses as the court may order. Rev. Sts. sec. 4652. Salvage Awarded to Captors. The whole amount awarded as salvage shall be decreed to the captors, and no part to the United States, and shall be distributed as in the case of proceeds of property condemned as prize. Rev. Sts. sec. 4652. 34 ADULTERY (AS A CRIME). I. THE INDICTMENT GENERALLY, 305. H ALLEGATIONS OF TIME, 306. III. NAME OF CO-CRIMINAL, 3 06 - IV. ALLEGATIONS OF KNOWLEDGE, 307. V. ALLEGATIONS OF MARRIAGE, 307. 1. Only One Married, 307. 2. Parties Not Husband and Wife, 307. 3. Name of Defendant's Wife, 307. 4. Name of Defendant's Husband, 307. VI JOINDER OF COUNTS, 37- VII JOINDER OF DEFENDANTS, 3 8 - VIII INSTRUCTIONS, 3 8 - As to Adultery in Divorce Law, see DIVORCE. As to Civil Action for Adultery, see CRIMINAL CONVERSATION. I. THE INDICTMENT GENERALLY Essential Allegations. In prosecu- tions for the crime of adultery all the elements which constitute the crime must be charged with certainty in the indictment. 1 The Form. It is sufficient if the allegations conform substantially to the statute defining the crime ; but the precise words of the statute need not be used. 2 1. Edwards v. State, 10 Tex. App. 25. 2. Lord v. State, 17 Neb. 526 ; State v. Tally, 74 N. Car. 322. See State v. Miller, 60 Vt. 90, where the exact words of the statute were used and yet the indictment was held bad. Using Words "Commit Adultery." It has been held that the only essen- tial allegation is the one that the de- fendant did " commit adultery." If this is used, no other allegation is necessary, as this implies the offense without the allegation of any other fact. State v. Hinton, 6 Ala. 864 ; Helfrick v. Com., 33 Pa. St. 68, 75 Am. Dec. 579. Words in a Statute not an Element. Under a statute which prohibits the " habitual carnal intercourse with each other, without living together, of a man and woman, when either is lawfully married to some other per- son," the words "without living to- gether" are not elements in the of- fense of adultery, and they may be omitted from the indictment. State v. Carroll, 30 S. Car. 85. Good Indictment. The following form of indictment was held good : the in- dictment alleged that the respondent, on, etc., at, etc., then and there being a married man and having a wife then living, did carnally know C., she then and there being a married woman and the wife of L., of, etc., who was then living, and not the wife of the respondent, and with her did then and there commit the crime of adultery by carnally knowing her, etc. State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124. Pennsylvania. A count for adultery drawn according to established prece- dents recognized by the courts prior i Encyc. PI. & Pr. 20. 305 Allegations of Time. ADULTERY. Name of Co-Criminal. Using Word "Adultery." The indictment need not contain the name of the offense. The term "adultery" is not material; a statement of the facts constituting the offence is sufficient. 1 Open and Notorious. An averment that the adultery was open and notorious should be made, especially where this is an element of the crime as defined by statute. 2 Surplusage. The allegation of other acts of adultery than the one proved may be rejected as surplusage. 3 Party Commencing Prosecution. Where a statute provides that the prosecution must be commenced by the husband or wife of one of the guilty parties, the indictment need not allege that it was so commenced. 4 II. ALLEGATIONS OF TIME. In an indictment for adultery every material fact necessary to constitute the offense charged must be set forth with certainty as to time. 5 Between Different Periods. It may be charged that the offense was committed between certain points of time. 6 III. NAME OF CO-CRIMINAL. The name of the person with whom the defendant committed adultery, if known 7 , is material and must be alleged truly. 8 to the crimes acts will be adjudged sufficient, though not pursuing the language of 36, act March 31, 1860, Pa. L. 392. Gorman v. Com., 124 Pa. St. 536- 1. State v. Baldy, 17 Iowa 39. In an indictment the words "carnal knowledge " imply sexual bodily con- nection. Com. v. Squires, 97 Mass. 59- 2. State v. Johnson, 69 Ind. 85. Living Together. Some authorities hold that the indictment must show that the guilty parties lived together. State v. Gartrell, 14 Ind. 280 ; McGuire v. State, 37 Ala. 160 ; State v. Dunn, 26 Ark. 34. This last case also holds that there should be an allegation that the parties were of different sexes. 3. State -v. Briggs, 68 Iowa 416. Discretion of Court. It is wholly within the discretion of the trial court to allow further specifications of the crime than those contained in the in- dictment. State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124. 4. State v. Maas, 83 Iowa 468 ; State v. Stout, 71 Iowa 343 ; State v. Mahon, Si Iowa 121. Sufficient Commencement. The prose- cution may be sufficiently commenced either by making complaint before a grand jury or by filing an information before a magistrate. State v. Briggs, 68 Iowa 416 ; State v. Donovan, 61 Iowa 278 ; State v. Wilson, 22 Iowa 364 ; State v. Dingee, 17 Iowa 232 ; State v. Baldy, 17 Iowa 39. Instruction by Court. The court need not instruct the jury as to the neces- sity of the prosecution being com- menced by the husband or wife. State v. Hazen, 39 Iowa 648. 5. State v. Thurstin, 35 Me. 205, 58 Am. Dec. 695. Amendment. Where an indictment charged the offence adultery to have been committed in the year 1800, it was held that the state could not amend by inserting the words " sixty- eight." Com. v. Seymour, 2 Brew. (Pa.) 567. 6. State v. Way, 5 Neb. 283. And the indictment may lay a broader pe- riod of intercourse than will be proved. Bailey v. State, 36 Neb. 809. Continuando. Living together in adultery need not be charged with a continuando, but as on a single desig- nated day. Swancoat v. State, 4 Tex. App. 105. 7. Name Unknown. But if the name is unknown to the grand jurors, an al- legation that the name is unknown is sufficient. Com. v. Tompson, 2 Cush. (Mass.) 551. 8. State v. Vittum, 9 N. H. 519, where the indictment alleged that the accused committed adultery with one L. W., it was held that evidence could not be in- 306 Knowledge. AD UL TER Y. Joinder of Counts. IV. ALLEGATIONS OF KNOWLEDGE. It need not be averred that the defendant had guilty knowledge of his act. An allegation that the defendant knew the person with whom he or she com- mitted adultery to be married is not requisite. 1 V. ALLEGATIONS OF MARRIAGE 1. Only One Married. The crime of adultery is well laid in an indictment, if at the time of the offense only one of the parties is alleged to have been married.'-* 2. Parties Not Husband and Wife. The allegation that the parties committing the adultery are not man and wife is a material one. 3 Manner of Making Averment. But any form of words stating that the woman or man was the wife or husband of some person other than the accused is sufficient. 4 3. Name of Defendant's Wife. The allegation that the de- fendant is married is sufficient ; the name of his wife need not be given in the indictment. 5 4. Name of Defendant's Husband. 1 But it is essential when a married woman is prosecuted for adultery that the indictment set forth the name of her husband. 6 VI. JOINDER OF COUNTS. The indictment may contain several counts. 7 troduced to show adultery with L. W. junior. 1. Com. v. Elwell, 2 Met. (Mass.) 190; Fox v. State, 3 Tex. App. 329, 30 Am. Rep. 144. 2. State v. Hutchinson, 36 Me. 261 ; State v. Thurstin, 35 Me. 205 ; 58 Am. Dec. 695 ; Clay v. State, 3 Tex. App. 499 ; Com. v. Reardon, 6 Cush. (Mass.) 78 ; Parks v. State, 3 Tex. App. 337. The above authorities are probably constructions of statutes making it adultery in both parties when either is married ; they are not applicable when it is necessary that the defendant should be married in order to consti- tute the crime. Insufficient Allegation. Where an in- dictment which charged that the de- fendant committed the crime of adul- tery with E. W., the wife of S. H. W., she being a married woman and the lawful wife of said S. H. W. , it was held that the indictment did not sufficiently allege that she was a married woman when the offense was committed. State v. Thurstin, 35 Me. 205, 58 Am. Dec. 695- 3. Hopper v. State, 19 Ark. 143 ; Tucker v. State, 35 Tex. 113 ; State v. Clinch, 8 Iowa 400. 4. Moore v. Com., 6 Met. (Mass.) 244, 39 Am. Dec. 724; Com. v. Reardon, 6 Cush. (Mass.) 78. See Com. v. Cor- son, 4 Pa. L. J. 271. Insufficient Allegation. An indict- ment which alleges that P. M. on a certain day and at a certain place " did commit the crime of adultery with one M. S. by then and there having carnal knowledge of the body of said S., she, the said S., then and there being a married woman and having a husband alive," is not sufficient to support a conviction. These allegations do not show with certainty that M. S. was not the wife of P. M. Moore v. Com., 6 Met. (Mass.) 243, 39 Am. Dec. 724. 5. Davis v. Com. (Pa., 1886), 7 Atl. Rep. 194; Gorman v. Com., 124 Pa. St. 536, holding that such omission is but a matter of form to be set up before the jury is sworn. 6. Com. v. Corson, 2 Pars. Eq. Cas. (Pa.) 475. But see Collum v. State, 10 Tex. App. 709, holding that the husband's name may be treated as surplusage. 7. Gorman v. Com., 124 Pa. St. 536; State v. Marvin, 35 N. H. 22. Bastardy. A charge of bastardy may be united with that of adultery in the same count. Gorman v. Com., 124 Pa. St. 536. Several Specifications. An indictment which contains several specifications, and yet charges substantially but one offense, is not open to the objection that it charges several offenses in the same count, if such adultery was the 307 Joinder of Defendants. ADULTERY. Instructions. VII. JOINDEB OF DEFENDANTS. The parties may be jointly in- dicted. 1 Better Practice. But the better practice is to indict the parties separately.'- 4 VIII. INSTRUCTIONS. The court need not instruct the jury as to the meaning of common words in a statute which defines adultery. The jury are presumed to know the meaning of familiar phrases. 3 same, defined by the same section of the statute, and punishable in the same manner. State v. Clawson, 30 Mo. App. 139. 1. State v. Bartlett, 53 Me. 446; Com. v. Thompson, 99 Mass. 444; Com. v. Elwell, 2 Met. (Mass.) 190; Frost v. Com., 9 B. Mon. (Ky.) 362. Separate Trial. When jointly in- dicted, one may be tried alone. State v. Carroll, 30 S. Car. 85. 2. State v. Dingee, 17 Iowa 232; State v. Wilson, 22 Iowa 364. 3. "Habitual Carnal Intercourse." Where the statute makes " habitual carnal intercourse " adultery, the court need not explain to the jury the meaning of such phrase. Collum v. State, 10 Tex. App. 709. See State v. Carroll, 30 S. Car. 85, where it was held that the court might leave it to the jury to say how frequent the act must be to make it " habitual." Change of Law. The penal code of a state may materially change the law of adultery; and the alterations may be such as to necessite a correspond- ing change in the instructions to juries. " The change in the law must be borne in mind in trials for this of- fense where, as in the present case, the offense is alleged to have been committed since the last revision of the Code went into operation. Espe- cially should these changes be care- fully observed in the preparation of indictments or informations, and in the charge of the court as to what the proof must show in order to warrant a con- viction." Per Winkler, J., in Collum v. State, 10 Tex. App. 708, 711. The Penal Code of Texas has so changed the law that adultery may now be committed in either of two modes: (i) by the living together and having carnal intercourse with each other of a man and a woman of whom either is married to some other person; or (2) by "habitual carnal inter- course " of such persons with each other, without living together. Col- lum v. State, 10 Tex. App. 708. " From the language employed we think it manifest that more is required to be alleged, and consequently further evidence is required by the re- vision than by the former law on the subject, and hence we conclude that adjudications under the old law cannot furnish a safe and sufficient guide in the administration of the present law, so far as the changes are concerned; and especially must this be the case when the change as to the proof is so manifest." Per Winkler, J., in Collum v. State, 10 Tex. App. 708. Under a statute which prohibits "the habitual carnal intercourse with each other, without living together, of a man and woman, when either is lawfully married to some other per- son," it was held that the carnal inter- course must be more than occasional, and that the trial judge might properly so instruct the jury. State v. Carroll, 30 S. Car. 85. 308 AFFIDAVITS. By W. CALVIN CHESNUT. (See also AFFIRMATIONS; OATHS; VERIFICATION) I. DEFINITION, 309. II. SUFFICIENCY, 310. I. Formal Requisites, 311. a. Title, 311. b. Venue, 313. c. Signature, 315. d. Jurat, 316. e. Authentication, 317. /. Date, 320. 2. Substance, 320. #. / General, 320. . Parties, 323. r. Language, 323. . Tallman, 15 Wis. 92. Secretary. And under the statute of Congress (14 U. S. Sts. fat Large, 559} providing for the removal of cases from a state to a federal court upon the affidavit of the party seeking it, an affidavit cannot be made on behalf of a corporation by its secretary, un- less he is specially authorized to make it. Dodge v. Northwestern Union Packet Co., 13 Minn. 458. A Partnership, as such, cannot make an affidavit. Gaddis v. Durashy, 13 N. J. L. 324; Norman v. Horn, 36 Mo. App. 419. But it may do so by its agent, who may sign the firm name "by" his own. Bennett v. Gray, 82 Ga. 592. Number of Affiants. Peters, J.; " As many persons as choose to do so may swear in the identical same words and verify their oaths by their signatures, and whether the oath is written on one or many pieces of paper makes no difference." Taylor v. State, 48 Ala. 180. 1. Thus, for an appeal, Coppock v. Smith, 54 Miss. 640; to a plea in abate- ment, Atwood -v. Higgins, 76 Me. 423; for a certiorari, McAlpin v. Finch, 18 Tex. 831; for an attachment, Weaver v. Roberts, 84 N. Car. 493; Clark v. Miller, 88 Ky. 108; Hardie v. Colvin, 43 La. Ann. 851; Fulton v. Brown, 10 La. Ann. 350. Betts, J.: " The courts of law, as a general rule, require affidavits to the- merits of a cause, and in those in- stances where the diligence and good faith of a party are in question, to be made by the party himself. Still the rule in those cases is not inflexible, for the deposition of an attorney or other 326 Who May Make. AFFIDA VI TS. Who May Make. Agents may, in many cases, make affidavits for their principals. 1 person may be substituted when good cause is shown for the change. Williams v. Magill, I H. Bl. 637; Peake's N. P. 97; Geib v. Icard, n Johns. (N. Y.) 82; Roosevelt v. Dale, 2 Cow. (N. Y.)58i; Chase v. Edwards, 2 Wend. (N. Y.) 283." A proctor in admiralty can make an affidavit for the party. The Harriet, Olc. Adm. 222. See AFFIDAVITS OF MERITS. Knowledge of Facts. If the attorney has personal knowledge of the facts, he may generally make the affidavit. Rausch v. Moore, 48 Iowa 611, 30 Am. Rep. 412; Will v. Lytle Creek Water Co., 100 Cal. 344. And an affidavit of an attorney or agent making positive statements need not give his source of knowledge. Anderson v. Wehe, 58 Wis. 615. And see Doll v. Mundine, 84 Tex. 315. But in New York , if he has not the knowledge, and no excuse is given for the failure of the party to make the affidavit, his affidavit is generally in- sufficient. Cross v. National F. Ins. Co., 17 Civ. Pro. Rep. (N. Y. Supreme Ct.) 199, 6 N. Y. Supp. 84; Clark v. Sul- livan (Supreme Ct.), 8 N. Y. Supp. 565; Pach v. Geoffrey (Supreme Ct.), 19 N. Y. Supp. 583; Talbert v. Storum, 66 Hun (N. Y.) 635, 21 N. Y. Supp. 719; Van Ingen v. Herold (Supreme Ct.), 19 N. Y. Supp. 456; Cohn v. Baldwin (Supreme Ct.), 26 N. Y. Supp. 457. And an attorney who makes an affidavit in respect of a transaction of his client will not be presumed to have any personal knowledge of the facts as to which he affirms. Crowns v. Vail, 31 Hun (N. Y.) 204. In Missouri an affidavit for change of venue in civil cases must be made by the party himself and not by his attor- ney. Lewin v. Dille, 17 Mo. 64; Huth- sing v, Maus, 36 Mo. 101; Norvell v. Porter, 62 Mo. 309; In re Whitson's Estate, 89 Mo. 58; Squires v. Chilli- cothe, 89 Mo. 226. See CHANGE OF VENUE. In Colorado, under a statute which requires that an affidavit for publica- tion of summons shall be made by a party to the action, it cannot be made by the attorney, except possibly in a very exceptional case, and then by reason of his interest. Davis v. John Mouat Lumber Co., 2 Colo. App. 381; Morton v. Morton, 16 Colo, 358. Absent Plaintiff. Where a statute authorized an affidavit to be made by the attorney or agent of the plaintiff when the latter was absent, it could not be made for an absent plaintiff by the attorney usually employed by the plaintiff, but who at the time of making the affidavit had not consulted with the plaintiff in reference to in- stituting the particular proceedings, though his acts were ratified by the plaintiff upon coming to his knowledge. Johnson v. Johnson, 31 Fed. Rep. 700. The Affidavits of Two Attorneys, swearing to different facts, will be sufficient if, taken together, they cover all the facts. Lewis v. Stewart, 62 Tex. 352. In Indiana attorneys may make affi- davits for their clients, as ether agents. Abbott v. Zeigler, 9 Ind. 511. But see Shattuck v. Myers, 13 Ind. 46. The Attorney's Clerk cannot, in gen- eral, make the affidavit. Ames v. Merriman, 9 Wend. (N. Y.) 498; Pitts- burgh Bank v. Murphy (Supreme Ct.), 18 N. Y. Supp. 575. Counsel for the party may not make affidavits unless he has personal knowledge or gives a sufficient excuse for the failure of the party himself to make it. People v. Spalding, 2 Paige (N. Y.) 326; Marshall v. Witte, i Phila. (Pa.) 117; Gross v. Painter, I W. N. C. (Pa.) 154; Philadelphia v. Devine, i W. N. C. (Pa.) 358. But in Deshay v. Persse, 9 Abb. Pr. (N. Y.) 289, note, an affidavit by counsel was allowed to be supplemented at the hearing by his statement that the party was absent. And in Iowa the professional state- ment of counsel, when received by the court, is to be regarded as an affi- davit. Rice v. Griffith, 9 Iowa 539. 1. McWorterT/. Reid, i Hill (S. Car.) 368; Allen v. Champlin, 32 La. Ann. 511; Deering v. Warren, i S. Dak. 35. But not in all cases. Thus: In Georgia an affidavit to be allowed to make a claim \nforma pauperis may not be made by an agent. Hadden v. Larned, 83 Ga. 636. And in Kansas an affidavit for an execution may not be made by a mere agent. In re Heath, 40 Kan. 333, In Missouri, Minnesota, Michigan, Ala- bama, and Texas it is proper but not indispensable that an affidavit by an agent should expressly swear to the existence of the agency. Recital of 3 2 7 Who Authorized to Take. AFFIDA VI TS. Within the State. Third Person. And sometimes even a third person may make the affidavit. 1 IV. WHO AUTHOBIZED TO TAKE 1. Within the State. Affida- vits must be made before some officer authorized either generally or specially to administer oaths and affidavits.'-* it will suffice. Remington Sewing Machine Co. v. Cushen, 8 Mo. App. 528; Smith v. Victorin, 54 Minn. 338; Wetherwax v. Paine, 2 Mich. 557; Murray v. Cone, 8 Port. (Ala.) 252; Evans v. Lawson, 64 Tex. 199. But see Willis v. Lyman, 22 Tex. 268. In Missouri the agency may appear aliunde. Ring v. Chas. Vogel Paint, etc., Co., 46 Mo. App. 374. In Louisiana, New York, and Wis- consin the contrary has been held. Lithgow v. Byrne, 17 La Ann. 8; Ex p. Bank of Monroe, 7 Hill ( N. Y.) 177; Ex p. Aldrich, i Den. (N. Y.) 662; Cunningham v. Goelet. 4 Den. (N. Y.) 71; Ex p. Shumway,4Den. (N. Y.)258; People v. Perrin, I How. Pr. (N. Y.) 75; Wiley v. Aultman, 53 Wis. 560; Sloane v. Anderson, 57 Wis. 123, 135; Miller v. Chicago, etc., R. Co., 58 Wis. 310. See also Hill v. Hoover, 5 Wis. 354- Behalf of Principal. An affidavit made by an agent should show that it is made on behalf of the principal. Mackey v. Hyatt, 42 Mo. App. 443; Gilkeson v. Knight, 71 Mo. 403; Stringer v. Dean, 61 Mich. 196; Nic- olls v. Lawrence, 30 Mich. 395. In Arkansas the affidavit need not state that the affiant made it for the plaintiff, as the court will not presume he was unauthorized. Mandel v. Peet, 18 Ark. 236. 1. As in the absence or sickness of the party himself. James v. Young, i Dall. (Pa.) 248; Sleeper v. Dougherty, 2 Whart. (Pa.) 177. But an affidavit for supplementary proceedings which was not made by the judgment creditor or his attorney, but by one who failed to show that he was authorized to make it in behalf of the creditor, is insufficient. Brown v. Walker (Supreme Ct.), 8 N. Y. Supp. 59- " The correct rule would seem to be that when a defendant puts in a stranger's affidavit, it must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability." Griel v. Buckins, 114 Pa. St. 187. 2. State v. Green. 15 N. J. L. 88; Ladow v. Groom, i Den. (N. Y.) 429; Greenvault v. Farmers, etc., Bank, 2 Doug. (Mich.) 498. General Authority. W T h ere an affida- vit is required and no particular officer is designated, it may be made before any officer having general authority to administer oaths and affidavits. Dunn v. Ketchum, 38 Cal. 93; Christ- man v. Floyd, 9 Wend. (N. Y.) 340; Wood v. Jefferson County Bank, 9 Cow. (N. Y.) 194. Under Acts of Congress. For use in the courts of the United States, affidavits must be made before some person au- thorized by act of Congress or rule of court to take them. Haight v. Morris Aqueduct, 4 Wash. (U. S.) 601; Gray v. Tunstall, Hempst. (U. S.) 558. Or by regulation of the head of a de- partment. U. S. -v. Bailey, 9 Pet. (U. S.) 238. Or by the custom of a department. U. S. v. Winchester, 2 McLean (U. S.) 135. An act of Congress may authorize a state magistrate to take affidavits in support of claims against the United States. U. S. v. Bailey, 9 Pet. (U. S.) 238. As to what affidavits for use in United States courts may be made be- fore notaries public, see In re Mc- Kibben, 12 Nat. Bank Reg. 97, 2 Cent. L. J. 277. A notary public ap- pointed by a state had not, prior to the passage of the act of Congress, Feb. 26, 1881, power to administer an oath to an officer of a national bank, making a report under 5211 of the Revised Statutes. U. S. v. Curtis, 107 U. S. 671. An affidavit upon which a requisi- tion was sought, the venue of which reads, "State of Wisconsin, Muni- cipal Court, City and County of Mil- waukee," and the jurat of which is signed " J. M., Clerk of the Municipal Court," sufficiently conforms to the act of Congress providing that the affidavit shall be sworn to before " a magistrate." In re Keller, 36 Fed. Rep. 6Si. 328 Who Authorized to Take. AFFIDA VI TS. Within the State. Judges and clerks of courts, 1 justices of the peace, 2 notaries public, 3 2. But they are not authorized ex of- ficio. Munn v. Merry, 14 N. J. L. 183; Matter of Highway, 16 N. J. L. 91. In New Jersey before the act of Feb. 14, 1839, Rev. Sts. 871, a justice could not administer an oath except upon proceedings before him. Smith -v. Ab- bott, 17 N. J. L. 358. See also Anony- mous, 8 N. J. L. 176; Vanderveer v. Conover, 16 N. J. L. 490; Hunt v. Langstroth, 9 N. J. L. 223. Kentucky. Nor were they author- ized in Kentucky. Trabue v. Holt, 2 Bibb (Ky.)393; Green v. Breckinridge, 4T. B. Mon. (Ky.) 541. In New York they were authorized by the act of 1840. People v. Brooks, i Den. (N. Y.) 457, 43 Am. Dec. 704. And see People v. Tioga, 7 Wend. (N. Y.) 516. But in Delaware and Alabama they may take affidavits. Shute v. Gould, 4 Harr. (Del.) 203; Bloodgood v. Smith, 14 Ala. 423. In Missouri the act of 1847, provid- ing that affidavits taken under it could be made before any court of record within the United States, did not take from justices of the peace the power to take affidavits. Glasgow v. Switzer, 12 Mo. 395. In Arkansas they may administer oaths anywhere within the limits of their respective counties, although they are not authorized to act judicial- ly in civil proceedings beyond their respective townships. Humphries v. McCraw, 5 Ark. 61. 3. They did not necessarily have the power at common law, but it is universally granted by statute. Prof- fat on Notaries, sec. 24; Keefer v, Mason, 36 111. 406. In Missouri they have the same power to administer oaths as any judi- cial officer. State v. Boland, 12 Mo. App. 74. Alabama. Under the law of Ala- bama a notary public is a justice of the peace, and as such he may administer an oath. Taylor v. State, 48 Ala. 180. In Illinois a notary public who has authority to administer oaths general- ly may take the affidavit of the service of a summons by a special deputy sheriff. Edwards v. McKay, 73 111. 570. In New York the statute conferring on notaries the authority to certify 1. Judges. In the absence of statu- tory provision to the contrary, affi- davits to be read in common-law courts upon any trial or argument may be taken in open court or before a judge thereof at chambers. English v. Bonham, 15 N. J. L. 451. In New York the judges of the Courts of Common Pleas were by statute ex officio commissioners for taking affidavits to be read in the Su- preme Court, and could take affidavits in any county. Hopkins v. Mender- back, 5 Johns. (N. Y.) 234. Clerks. Under the Code of Virginia of 1860, ch. 176, 27, which be- stowed upon "any court, or the clerk of any court," authority to administer affidavits, the clerk of the District Court of the United States for the Dictrict of West Virginia was in- cluded. Parker v. Clark, 7 W. Va. 467. But see Robinson v. Gregg, 57 Fed. Rep. 186. In West Virginia the provision of the Code (1868, p. 585, ch. 117, 6) that " a clerk of a court or his deputy may administer an oath in any case wherein an affidavit is necessary or proper" does not limit their authority to cases in which, without regard to circumstances, the making the affida- vit is a necessary prerequisite to the performance of an official act which the clerk is called upon to perform, but extends it to all cases wherein an affidavit is necessary. Chesapeake, etc., R. Co. v. Patton, 5 W. Va. 234. In Tennessee an affidavit to the loss of an instrument upon which suit has been brought must be made before the clerk of the court, or before the court where the suit was commenced or is pending. Baker v. Grigsley, 7 Heisk. (Tenn.) 627. In Illinois a clerk of the Circuit Court is authorized to administer an oath to a party making affidavit upon which to found a ca. sa. Fergus v. Hoard, 15 111. 357. An affidavit for an attachment need not be made before the same clerk who issues the writ. Wright v. Smith, 66 Ala. 545. See also Wicker -v. Scho- field, 59 Ga. 210. Beyond Jurisdiction. But a clerk for one county may not administer an affi- davit in another. Tanner, etc., Engine Co. v. Hall, 22 Fla. 391. 329 Who Authorized to Take. AFFIDA VI TS. WitMn the State. and commissioners 1 are the officers usually empowered. Deputy. Except in the absence of a competent officer, his dep- uty, unless also authorized by statute, should not take affidavits. 58 Attorney. In general, the attorney of record of the party may not take affidavits offered by him. 3 affidavits was not construed as re- stricted to affidavits in actions pending only. Mosher v. Heydrich, I Abb. Pr. N. S. (N. Y.) 258, 30 How. Pr. (N. Y.) 161. 1. Wire z/. Browning, 20 N. J. L. 364. In New York commissioners to take affidavits to be read in the Supreme Court might take affidavits to be read in a justice's court. Whitney v. Warner, 2 Cow. (N. Y.) 499. The act of March 24, 1818, author- izing the appointment of commission- ers to perform certain special duties, did not supersede the authority of the commissioners appointed by the court to take affidavits. Jones v. Smith, 16 Johns. (N. Y.) 232. But the office of commissioners to take affidavits, under the act of 1818, in the cities, became vacant by the appointment of new commis'sioners for the cities under the act of 1823. Brown v. Osborne, 2 Cow. (N. Y.) 457 . Proof of Commission. To validate an affidavit taken before a public commis- sioner, his commission need not be proved. Rex v. Howard, I M. & R. 187. See also Parker v. Baker, 8 Paige (N. Y.)428. Others. In New York a state sena- tor could take affidavits. Craig v. Briggs, 4 Paige (N. Y.) 548. But a master in chancery could not take an affidavit of the publication of a notice for creditors to appear. Stanton v. Ellis, 16 Barb. (N. Y.) 319. And a coroner cannot in that state adminis- ter oaths. Berrien v. Westervelt, 12 Wend. (N. Y.) 194. Nor an assistant justice of a ward court, as a judge of a court of record. Wood v. Williams, I N. Y. Leg. Obs. 154. In Kansas affidavits may be made before a register of deeds. Thompson v. Higginbotham, 18 Kan. 42. Pennsylvania. The recorder of the city of Philadelphia may take affida- davits. Election Cases, 65 Pa. St. 20, 2 Brew. (Pa.) I, 7 Phila. (Pa.) 41; Schumann v. Schumann, 6 Phila. (Pa.) 318. Arkansas. An affidavit made "in the County of Sebastian, State of Ar- kansas, before John F. Wheeler, mayor," was made before one utterly unknown to the laws of that state. Edmondson v. Carnall, 17 Ark. 284. But where the statute gives a mayor the powers of a justice of the peace he may take an affidavit. Robinson v. Benton County, 49 Ark. 49. 2. In general a deputy clerk may not take them. Norton v. Colt, 2 Wend. (N. Y.) 250; Murdock v. Hillyer, 45 Mo. App. 287. Nor a clerk pro tern. State -v. Bayonne, 35 N. J. L. 476. In Pennsylvania the deputy of the prothonotary may take them. Elec- tion Cases, 7 Phila. (Pa.) 41, 2 Brew. (Pa.) I, 65 Pa. St. 20. And an oath required to be adminis- tered by a collector of customs may also be administered by his legal dep- uty. U. S. v. Barton, Gilp. (U. S.) 439- In Minnesota and Michigan a deputy clerk is authorized to administer oaths. Crombie v. Little, 47 Minn. 581. In the latter state whether his princi- pal is absent or not. Dorr v. Clark, 7 Mich. 310. In New York, under a statute allow- ing a deputy clerk to administer oaths in the " absence " of the clerk, the lat- ter must be absent not only from the office, but from the neighborhood. Lucas v . Ensign, 4 N. Y. Leg. Obs. 142. In Washington also he is authorized by statute, and should sign the jurat in his own capacity without mention- ing his principal. State v. Doe, 6- Wash. 587. The certificate to the verification of a complaint which read, " Sworn ard subscribed to before me, etc., A. J. R., Clerk of the Circuit Court of the Uni- ted States for the Eastern District cf North Carolina, in the Fourth Circuit, by Wm. H. Shaw, Deputy Clerk," was held insufficient because " some one else than the clerk states that the affiant came before the clerk, and was sworn, presumably by him, and sub- scribed the oath. This statement can- not bind the clerk and is but secondary evidence of the facts stated." Robin- son v. Gregg, 57 Fed. Rep. 186. 3. King v. Wallace, 3 T. R. 403; 33 Who Authorized to Take. AFFIDA VI TS. Foreign Affidavits. 2. Foreign Affidavits may generally be made before any officer of another state or county authorized by its laws to administer Hopkinson v. Buckley, 8 Taunt. 74, 4 E. C. L. 23; i Lee Die. Pr. 28; i Petersd. Ab. 368, 9; 2 Paine & Duer Pr. 54- Kansas. Tottle v . Smith, 34 Kan. 27; Foreman v. Carter, 9 .Kan. 681; War- ner v. Warner, n Kan. 121; Schoen v. Sunderland, 39 Kan. 758. Colorado. Andersons. Sloan, i Colo. 33; Martin v. Skehan, 2 Colo. 614. In Arkansas an attorney in the cause cannot even take an affidavit of the service of a notice, though not made by the party. Hammond v. Freeman, 9 Ark. 62. New York. Anonymous, 4 How. Pr. (N. Y. Supreme Ct.)', 290; Kuh v. Bar- nett (Super. Ct.), 6 N. Y. Supp. 881; Murray v. Hefferman, 2 Month L. Bull. 67; Bliss v. Molter, 58 How. Pr. (N. Y. Supreme Ct.) 112. In this case the at- torney did not indorse his name on the paper until after the affidavits were taken, but the court decided that he was throughout acting as attorney. In Vary v. Godfrey, 6 Cow. (N. Y.) 587, it was implied that the affidavit would have been excluded even if the attor- ney had been merely retained. " The rule which excludes an affida- vit taken before the attorney is merely technical and has never in this state been extended beyond the case of the attorney or solicitor on record. In Willard' v. Judd (15 Johns. (N. Y.) 531), the Supreme Court refused to extend the principle to the counsel in the cause. And in Hallenback v. Whita- ker (17 Johns. (N. Y.) 2) the same court decided that it did not extend to the partner of the attorney on record, al- though he was interested in the profits of the business. The Supreme Court reluctantly consented to adopt the rule in the case of Taylor v. Hatch (12 Johns. (N. Y.) 340), because they found the practice to be thus settled in the Court of King's Bench. But the latter court has never extended the rule be- yond the attorney on record." People v. Spalding, 2 Paige (N. Y.) 326. Suit Not Pending. The rule, how- ever, applies only to affidavits made be- fore an attorney in a suit pending, not to those preparatory to the commence- ment of one. Vary v. Godfrey, 6 Cow. (N. Y.) 587; Willard v. Judd, 15 Johns. (N. Y.) 531; Hallenback v. Whitaker, 17 Johns. (N. Y.) 2; Gilmore v. Hemp- stead, 4 How. Pr. (N. Y. Supreme Ct.) 153; Howard v. Nalder, Barnes' Notes, 60; Adams v. Mills, 3 How. Pr. (N. Y. Supreme Ct.) 219. An attorney may take the oath of admeasurers of dower. Griffin v. Borst, 4 Wend. (N. Y.) 195. The Attorney's Partner may take. Duke of Northumberland v. Todd, 7 Ch. Div. 777; Turners. Bates, 10 Q. B. 292, 59 E. C. L. 290; Hallenback v~ Whitaker, 17 Johns. (N. Y.) 2. Attorney's Clerk. In England, for- merly, the affidavit might be taken before the clerk of the attorney of record. Goodtitle v. Badtitle, 8 T. R. 638. But not now. 3 Chit. Gen. Pr. 492. It may be taken by a clerk of a firm of solicitors, where one of the so- licitors was a party, but the firm not solicitors of record. Foster v. Har- vey, 4 De G., J. & S. 59. And in Nebraska a notary who is a clerk of an attorney may administer an oath to verify a pleading prepared by such attorney. Schuyler Nat. Bank v. Bol- long, 24 Neb. 821. In Wisconsin the attorney may take the affidavit of his client, though it is said to be an obvious impropriety. Dawes v. Glasgow, i Pin. (Wis.) 171. Attorney and Notary. In most states where the attorney is also a notary public he may take the affidavit. Reavis v, Cowell, 56 Cal. 588; Kuh- land v, Sedgwick, 17 Cal. 128; McCas- lin v. Camp, 26 Mich. 390; Sullivan v. Hall, 86 Mich. 7; Young v. Young, 18 Minn. 90; Ryburn v. Moore, 72 Tex. 85. A notary is not disquali- fied by the fact of being the prosecut- ing attorney from taking affidavits to be used by the state. State v. Noland, ill Mo. 473. In Kansas the affidavit is voidable only and may be amended. Swearin- gen v. Howser, 37 Kan. 126. In Colorado and Missouri, although notary, he may not take. Frybarger v. McMillan, 15 Colo. 349; Smith v. Ponath, 17 Mo. App. 262. Attorney and Justice. In Massachu- setts a justice of the peace, also the attorney, may administer an oath to his client. McDonald v. Willis, 143 Mass. 452. Contra, Hammond v. Free- man, 9 Ark. 62. Objection to an affidavit because made before the attorney should be 331 Who Authorized to Take. AFFIDA VITS. Foreign Affidavits. an oath, 1 and are generally duly authenticated if they are sub- scribed by such officer, and there is annexed to them a certificate of the clerk or other officer of a court of record of such state or county, under an official seal, verifying the genuineness of the signature of the first-mentioned officer, and his authority to ad- minister an oath. But, although this is the usual form, nearly all made promptly or it will be disre- garded. Gilmore v. Hempstead, 4 How. Pr. (N. Y. Supreme Ct.) 153; Linck v. Litchfield, 141 111. 469; Smith v. Ponath, 17 Mo. App. 262. Solicitor. The affidavit may not be made before the solicitor of the party. Pullen v. Pullen, 46 N. J. Eq. 318. Counsel. But if made before the counsel of the party, it may be read, as there is not the same objection. Willard v. Judd, 15 Johns. (N. Y.) 531; People v. Spalding, 2 Paige (N. Y.) 326; Atchison v. Glenn, 4 Cranch. (C. C.) 134; State -v. Bergen, 24 N. J. L. 548. Contra, Den v. Geiger, 9 N. J. L. 225. 1. Hays v. Bouthalier, I Mo. 346; Fox v. Lawson, 44 Ala. 319. In New York it is usual to allow affi- davits in support of collateral matters arising during the progress of a suit, as on a motion for a commission to ex- amine witnesses abroad, to be taken before magistrates or public officers out of the state. Marshall v. Mott, 13 Johns. (N. Y.)423. For Use in Pennsylvania an affidavit of debt might be made before a justice of the peace in England. Walker v. Bamber, 8 S. & R. (Pa.) 61; Burandon v. Flindt, 5 Haz. Pa. Reg. 382. Where an affidavit which purported to have been sworn to before " Thorn. Williamson, Alderman, Bo. of Nor- folk," was objected to because it did not appear that it had been taken before any one authorized by law to administer an oath, the court held that although they might not judicially know that an alderman of Norfolk had the power to administer an oath, yet, in the absence of any evidence to the contrary, it was sufficient. Noble v. U. S., Dev. Ct. of Cl. 83. A Number of Early Cases held that af- fidavits might not be made outside the state before officers of another state. Scull v. Alter, 16 N. J. L. 147; Anony- mous, 8 N. J. L. 176; Trenton Bank v. Wallace, 9 N. J. L. 83; Reid v. Brum- mitt, I Brev. (S. Car.) 16. In Kentucky such affidavits were not admissible except upon an answer in chancery. Ramy v. Kirk, 9 Dana (Ky.) 267. Notary Public. Nor were they ad- mitted even when made before a notary public. Benedict v. Hall, 76 N. Car. 113; Spragella v. Bruno, i Mill (S. Car.) 281. Contra, Tucker v. Ladd, 4 Cow. (N. Y.) 47. Ohio. An affidavit for use in Ohio cannot be made in another state be- fore a clerk of a court of record of that state. Fitch v. Campau, 31 Ohio St. 646. Commissioners are very generally ap- pointed by the various states to take affidavits outside the state. Irving v. Edrington, 41 La. Ann. 671; Andrews v. Ohio, etc., R. Co., 14 Ind. 169. Consul. Under the act of March 10, 1853 (Nix. Dig. 132, pi. 57), a consul of the United States may take. Seidel v. Peschkaw, 27 N. J. L. 427. A consul of the United States, in attesting an affidavit made before him in his capacity of notary public, bestowed upon him by the act of Congress, should give his title of office not simply as " Consul," but as " Notary Public," or " Consul and ex-officio Notary Pub- lic." Bruce v. Gibson, 5 Cin. L. Bull. (Ohio) 101. Where an agreement was made be- tween solicitors that an answer to be given in France might be taken and sworn to by any person authorized to administer oaths by the laws of France, and the answer was sworn to before the American consul, held, not within the agreement. Herman v. Herman, 4 Wash. (U. S.) 555. An affidavit of a plaintiff residing in Havana, taken before the com- mercial and naval agent of the United States resident there, may be read on a motion for a commission to take the examination of witnesses abroad. Welsh v. Hill, 2 Johns. (N. Y.) 373- Lord Mayor. In Pennsylvania, in 1785, an affidavit of debt sworn to before the Lord Mayor of London was held to be sufficient. Taylor v. Knox, i Dall. (Pa.) 158. And see Rogers v. Spalden, Jeff. (Va.) 58. 332 Use of. AFFIDA VITS. TTse of_ the states prescribe a method of authenticating foreign affidavits, with which there must be a substantial compliance, or they will generally be void. 1 V. USE OF AFFIDAVITS. In practice affidavits are most fre- quently used to initiate legal proceedings, and to further the various stages therein ; to certify and prove the service of process, or other matters relating to the proceedings in a cause ; and to support or oppose motions, in cases where a court determines matters in a summary way ; a and for various other purposes. 3 1. Phelps v. Phelps, 6 Civ. Pro. Rep. (N. Y. Supreme Ct.) 117; Cream City Furniture Co. v. Squier, 2 Misc. Rep. (N. Y.) 438, 21 N. Y. Supp. 972. See also Wood v. St. Paul City R. Co., 42 Minn. 411 ; Hyatt v. Swivel, 52 N. Y. Super Ct. i. For illustration of a substantial com- pliance with such statutes, see Ross v. Wigg, 34 Hun (N. Y.) 192, 6 Civ. Pro. Rep. (N. Y.) 277; Manufacturers', etc., Bank v. Cowden, 3 Hill (N. Y.)46i; National Exchange Bank v. Stelling, 32 S. Car. 102. Georgia. An affidavit taken outside the state and lacking the authentica- tion of the official character of the per- son administering the oath cannot be recognized in Georgia. Behn v. Young, 21 Ga. 207. In Missouri the official character of a judge of another state, before whom an affidavit is made, is sufficiently proved by a certificate of the clerk of the court under the seal of the court. Hays v. Bouthalier, i Mo. 346. Like- wise that of a justice of the peace. Posey v. Buckner, 3 Mo. 604. North Carolina. An affidavit made before a commissioner of North Caro- lina, resident outside the state, is suf- ficiently verified when authenticated by his official signature and seal. Young v. Rollins, 85 N. Car. 485. When taken by the clerk of a court of another state, the affidavit must be accompanied by a certificate of the judge concerning the identity and au- thority of the clerk. Miazza v. Cal- loway, 74 N. Car. 31. In Illinois and New York an affidavit taken before a notary public of an- other state, to be admissible in evi- dence, must show that the notary was authorized by his state to administer oaths. Keefer v. Mason, 36 111. 406; Bowen v. Stilwell, 9 Civ. Pro. Rep. (N. Y. City Ct.) 277; Williams v. Cul- hane (C. PI.), 22 N. Y. St. Rep. 42, 3 N. Y. Supp. 241. Maryland, Texas, Iowa. Under the Maryland attachment law, when the affidavit is made outside the state and before a judge of a court of record it must be accompanied by a certificate of the clerk of the court, under its seal, stating that the court is a court of record. It will not be presumed from the seal that the court is a court of record. Evesson v. Selby, 32 Md. 340; Coward v. Dillinger, 56 Md. 59. Contra, Moore v. Carson, 12 Tex. 66. In Iowa it may be proved aliunde. Levy v. Wilson, 43 Iowa 605. Judicial Record. An affidavit made in another state is not a judicial record within the meaning of the act of Con- gress providing a method for the au- .thentication of such, but is sufficiently certified when in accordance with the requirements of the state in which it is offered. Dillon v. Rand, 15 Colo. 372; Gibson v. Tilton, i Bland (Md.) 352, 17 Am. Dec. 306. The Term "Foreign Affidavits" em- braces those made in foreign countries as well as those made in other states. 2. i Burr. L. Diet. tit. "Affidavit." For the use of affidavits in particular proceedings see various titles in this work, as ATTACHMENT, CHANGE OF VENUE, etc. 3. Affidavits may be introduced tending to prove partiality or misbe- havior of arbitrators, but not mistake in law or fact. Pleasants v. Ross, i Wash. (Va.) 157, i Am. Dec. 449. Pedigree. An ex parte affidavit is good evidence to prove the identity of a person so far as it respects his mar- riage or pedigree. Winder v. Little, i Yeates (Pa.) 152. See also Douglass v. Sanderson, 2 Dall. (Pa.) 116, I Yeates (Pa.) 15. Depositions of de- ceased witnesses (whether made in or out of the state) taken in another cause between other parties may be admitted as declarations of pedigree, whether made after or before the question of pedigree became a subject 333 Use of. AFFIDA VITS. Use of. As Evidence. Upon the trial of a material question at issue, they of controversy. Boudereau v. Mont- gomery, 4 Wash. (U. S.) 186. But an affidavit made in another state nearly half a century previous to the trial is not admissible to prove pedigree, there being no proof that affiant is dead. Petersons. Ankrom, 25 W. Va. 56; Kellar v. Nutz, 5 S. & R. (Pa.) 246. As Pleadings. The records of courts cannot be proved by affidavits; nor can an affidavit be made to take the place or serve the purpose of an answer in abatement or in bar. Kellogg v. Suther- land, 38 Ind. 154. In Virginia, according to the settled doctrine of the court, when an account of the transactions of a fiduciary has been ordered upon a proper bill, if additional objections to the settled ex J>arte accounts are discovered in the progress of the cause, the plaintiff, to save the expense and delay of an amended bill, is permitted to present the matter before the commissioner with proper specifications in writing, and the defendant is allowed to meet these by affidavit, which has the same weight as would be given to an answer in chancery. Davis v. Morriss, 76 Va. 21; Corbin v. Mills, 19 Gratt. (Va.) 465- Argument. On a motion for a final order to confirm a report of commis- sioners for opening streets, it is within the discretion of the court to include in the motion an affidavit, which was nothing but an argument of counsel in the form of proof, in opposition to the motion. In re Board of Street Open- ing, 65 Hun (N. Y.) 625, 20 N. Y. Supp. 563- An Extra-judicial Affidavit to a vote of the stockholders of a corporation is sufficient authentication to make it ad- missible evidence. Hallowell, etc., Bank -v. Hamlin, 14 Mass. 178. An Affidavit by a Club given to a sheriff for the purpose of notifying him of their claim to certain property, not made as the basis of a replevy, is a mere private paper, not required to be made by law, and may thus be proved by the testimony of the affiant. Lavretta v. Holcombe, 98 Ala. 503. Before Justice. On a proceeding be- fore a justice of the peace, affidavits cannot be used to oust his jurisdiction. Esslerw. Johnson, 25 Pa. St. 350; Mont- gomery -v. Snowhill, a N. J. L. 362. Made in Another Suit. On an applica- tion for an order of publication, it is allowable to read affidavits used and entitled in another suit. Barnard v. Heydrick, 49 Barb. (N. Y.) 62, 2 Abb. Pr. N. S. (N. Y.) 47. Such evidence has been allowed in England on cer- tain applications. Langston v. Wether- all, 14 M. & W. 104. But see Lum- brozo v. White, Dick. 150. In Iowa, where the parties were the same and the motion similar, the affidavit, though made at a previous term, was admitted. Scholes v. Murray Iron Works Co., 44 Iowa 190. The courts will not consider affi- davits read and filed in a case upon which nothing is asked and which are not applicable to any motion, issue, or proceeding in the case. State v. Allen, 5 Kan. 213. Counter-affidavits are often used to defeat suits, as for a new trial. Finch v. Green, 16 Minn. 355. But not a motion for a continuance. Eslingerz/. East, 100 Ind. 434. See various titles. Preliminary Proof. Where an insur- ance policy requires the insured to give, in case of loss, an account thereof, under oath, in a suit on a policy, the affidavit of the insured is admissible to prove a compliance with the requirement, but for no other pur- pose. Phoenix Ins. Co. v. Lawrence, 4 Mete. (Ky.) 9, 81 Am. Dec. 521. An affidavit of publication by the printer or publisher of a newspaper is a mere matter of preliminary proof, and ac- complishes its functions as soon as it is filed and passed upon by the court. After judgment rendered, it cannot be attacked in a collateral action. Free- man v. Thompson, 53 Mo. 183. To Supplement Record. On appeal matters which should have been of record cannot be supplied by affidavits. Stannard v. Graves, 2 Call (Va.) 369. Nor can they be used to correct mate- rial facts untruthfully stated in the' record. Struber v. Rohlfs, 36 Kan. 202. But in New Jersey an affidavit may properly be used to bring before the Supreme Court the evidence which a particular witness gave before a jus- tice, where such evidence can be cor- rectly had, for the purpose of showing that such evidence was incompetent or that the justice erred in admitting it. Goldsmith v. Bane, 8 N. J. L. 87. 334 Use of. AFF1DA VITS. Use of. are generally not admissible as evidence, 1 especially when purely ex parte^ except as admissions against the affiant. 3 corroboration of other testimony given in the cause. Sturgeon v. Waugh, 2 Yeates (Pa.) 476; Lilly v. Kitzmiller, i Yeates (Pa.) 28. Weight. Earle, J. : "A voluntary affidavit ranks in equal grade with hearsay testimony in the scale of evi- dence, and in no case is received where better testimony can, from the nature of the case, be had." Patter- son v. Maryland Ins. Co., 3 Har. & J. (Md.) 71, 5 Am. Dec. 419. Ex parte affidavits may be read in opposition to and in support of awards in cases at law, but they will be given much less weight than testimony taken in court or on notice and subject to cross- examination. Tennant v. Divine, 24 W. Va. 387; Pleasants v. Ross, i Wash. (Va.) 156, i Am. Dec. 449; Adams v. Hubbard, 25 Gratt. ( Va.) 129. They are not conclusive. Lane v. Schomp, 20 N. J. Eq. 82. 3. State v. Lazarus, i Mill (S. Car.) 34; Morrell v. Cawley, 17 Abb. Pr. (N. Y.) 76; Chicago, etc., R. Co. v. Ohle, 117 U. S. 123. One party may introduce in evidence the affidavits of the other made during the progress of the cause if they are relevant; but they can have no effect on the merits unless so introduced. Wyser -v. Calhoun, n Tex. 323. And an admission made in an affidavit used in a suit between other parties is ad- missible against the affiant. Hall v. Cannon, 4 Harr. (Del.) 360. Laying Foundation. But an affidavit used in a litigation by a deceased de- fendant cannot, merely by reason of such use, be introduced at a subse- quent stage of the case, to affect the credibility of a witness, by whom it was made, for a new party defendant, brought in by the plaintiff, without laying the foundation for it as im- peaching evidence. Gardner v. Gran- niss, 57 Ga. 539. An affidavit, although contained in a record read by plaintiff, was held not to be evidence against him, because it was ex parte, and the affiant was pres- ent as a witness in the case on trial. Hargis v. Price, 4 Dana (Ky.) 79. Explain Circumstances. The affiant should be allowed to explain the cir- cumstances. Yale v. Edgerton, 14 Minn. 194; Snydacker v. Brosse, 51 HI- 357- 1. Lummis v. Stratton, 2 N. J. L. 245; Newton v. West, 3 Mete. (Ky.) 24; Talbot v. Pierce, 14 B. Mon. (Ky. ) 158. In Indiana an affidavit made in sup- port of an application for a change of venue is not admissible as evidence. Ohio, etc., R. Co. v. Levy (Ind. Sup., I 8g3), 34 N. E. Rep. 20. An affidavit of a surveyor, not the county surveyor, and not being any officer of the court or the county, is not admissible in evidence on an ac- tion for the purchase-money of a tract of land. Maples v. Hoggard, 58 Ga. 315. In an action against a railroad for killing a horse, it is not error to allow to be read in evidence an affidavit made at a previous term by an em- ploy6 of the defendant in support of a continuance and describing the cir- cumstances of the death of the horse. Asbach v. Chicago, etc., R. Co. (Iowa, 1892), 53 N. W. Rep. 90. On a Claim to Property Levied on in proceedings to foreclose a lien the plaintiff may offer in evidence the affi- davit of foreclosure. Dixon v. Will- iams, 82 Ga. 105. 2. Plankinson v. Cave, 2 Yeates {Pa.) 370; Lewis v. Bacon, 3 Hen. & M. (Va.) 89; Blincoe v. Berkeley, i Call (Va.) 405; Braxton v. Lee, 4 Hen. & M. (Va.) 376; Clutch v. Clutch, i N. J. Eq. 474; Egerton v. Egerton, 17 N. J. Eq. 419; Layton v. Cooper, 2 N. J. L. 61. In a certiorari case no- tice of the taking of an affidavit must be given to the opposite party al- though he has not appeared. War- ford v. Smith, 25 N. J. L. 212. Dickey, J. : "As to matter directly in issue, the testimony of witnesses must be so taken as to subject the witness to cross-examination, but as to some collateral or ancillary matters, and among such as to the loss of a document, affidavits taken ex parte are competent." Taylor v. Mclrvin, 94 111. 488; Baldwin v. Flagg, 43 N. J. L. 495, where it was said that the practice of taking affidavits ex parte, to be used on the argument of a motion, is pecul- iar to the court of chancery and has never been adopted in the courts of law. Ex parte depositions cannot be read in evidence to establish an indepen- dent title; but they are admissible to establish mere boundary, or by way of 3.35 Amendment. AFFIDA VITS. Amendment, As Part of Record. Unless specially made so, affidavits do not con- stitute a part of the record. 1 See also APPEALS. Filing The originals of all affidavits upon motions should be filed. 2 stale Affidavits. Affidavits for certain purposes must not lie unused too long or they become "stale." 3 VI. AMENDMENT. In nearly all the states formal defects 4 in affidavits, and in many even more substantial ones, may now be amended. 5 1. Clifford, J. : " Neither depositions nor affidavits, though appearing in the transcript of a common-law court of errors, can ever be regarded as a part of the record, unless the same are em- bodied in an agreed statement of facts, or are made so by a demurrer to the evidence, or are exhibited in a bill of exceptions." Baltimore, etc., R. Co. v. Sixth Presbyterian Church, 91 U. S. 127. Appeal. For consideration on appeal affidavits must be embraced in a bill of exceptions. Garland v. Bugg, I Hen. & M. (Va.) 374; Goldsmith v. State, 30 Ohio St. 208; Backus v. Clark, i Kan. 303, 83 Am. Dec. 437; Tiffin v. Forres- ter, 8 Mo. 644; McDonald v. Arnout, 14 111. 58; Altschiel v. Smith, 9 Kan. 90; Jenks v. School Dist., 18 Kan. 356; Faulkner v. Wilcox, 2 Litt. (Ky.) 369; Kirby v. Cannon, 9 Ind. 371; Murphy v. Tilly, it Ind. 511; Round v. State, 14 Ind. 493; Cochran v. Dodd, 16 Ind. 476; Merritt v. Cobb, 17 Ind. 314; Matlock v. Todd, 19 Ind. 130; White- side v. Adams, 26 Ind. 250; Bell v. Rinker, 29 Ind. 267; Potter v. Stiles, 32 Ind. 318; Blizzard v. Phebus, 35 Ind. 284; Taulby v. State, 38 Ind. 437; Blackwell v. Acton, 38 Ind. 425; Wray v. Tindall, 45 Ind. 517 ; Martin v. Harrison, 50 Ind. 270 ; Kimball v. Loomis, 62 Ind. 201 ; Fryberger v. Perkins, 66 Ind. 19; lies v. Watson, 76 Ind. 359; Chambers v. Kyle, 87 Ind. 83 ; Harrison School Township v. McGregor, 96 Ind. 185 ; Shields v. McMahon, 101 Ind. 591; Kleespies v. State, 106 Ind. 383; McClure v. State, 116 Ind. 169; Smith v. Wilson, 26 111. 186; State v. McGinniss, 17 Oregon 332; Patee v. Parkinson, 18 Kan. 465. Nor will the fact that they have been copied into the record by the clerk avail if not introduced by a bill of ex- ceptions. Schultz v. State, 32 Ohio St. 276; Taylor v. Fletcher, 15 Ind. 80; Horton v. Wilson, 25 Ind. 316; Whaley v. Gleason, 40 Ind. 405; Will- iams v. Potter, 72 Ind. 354; Kellen- berger v. Perrin, 46 Ind. 282; Turnbull v. Ellis, 35 Ind. 422; Corey v. Russell, 8 111. 366; Edwards v. Patterson, 10 111. 126; Lucas v. Farrington, 21 111. 31; Smith v. Wilson, 26 111. 186. Affidavits not referred to in any de- cree or order entered in the cause are no part of the record. Hilleary v. Thompson, n W. Va. 113. An order to transmit to the court above " original exhibits " will not in- clude affidavits. Craig v. Smith, 100 U. S. 226. 2. Anonymous, 5 Cow. (N. Y.) 13. An affidavit used on a motion, but not filed until after the motion was heard, may nevertheless be entered in the order as read, when it does not in- terfere with the date of the order, as when it is filed on the same day that the motion was heard. In re King & Co.'s Trademark (1892), 2 Ch. 462. 3. In Clarke v. Stilwell, 8 Ad. & El. 645, 35 E. C. L. 480, it was held that this rule applied to affidavits of debt only. The time within which they must be used is one year. Ramsden v. Maugh- am, 4Dowl. Pr. Cas. 403; Burt v. Owen, I Dowl. Pr. Cas. 691, i Tidd Pr. 190. 4. Thus the omission of the signa- ture of the affiant may be supplied by amendment. Schumann v. Schumann, 6 Phila. (Pa.) 318; Watts v. Womack, 44 Ala. 605. Contra, Cohen v. Manco, 28 Ga. 27. A mistake in the middle name of the affiant may be amended. State v. Giles, 103 N. Car. 391. In Missouri an affidavit for attach- ment, although it did not state the venue and was made nearly three months before the writ was sued out, might have been amended. Avery v. Good, 114 Mo. 290. And where blanks were left where the words " his " and " is " should have appeared, they were allowed to be filled, it not appearing that the defendant was thereby pre- judiced. Stewart v. Cabanne, 16 Mo. App. 517- 5. An affidavit so drawn as to ap- 336 Amendment AFFIDAVITS, Amendment. Where the jurat is defective through the negligence of the offi- cer, it is freely allowed to be amended. 1 statutes. Many states expressly provide by statute for the amendment of affidavits. 8 be amended. Ex p. Smith, 2 Dowl. Pr. Cas. 607. Signature of Officer. Where the offi- cer neglects to sign the jurat, the affi- davit may be amended. West Ten- nessee Agricultural, etc., Assoc. v. Madison, 9 Lea (Tenn.) 407; Pierson v. Hendrix, 88 111. 34; Peterson v. Fowler, 76 Mich. 258. His signature may be added mine pro tune. Veal v. Perkerson, 47 Ga. 92; Williams v. Stevenson, 103 Ind. 243; Hart v. Jones, 6 Kulp (Pa.) 326; Sims v. Redding, 20 Tex. 386; State v. Cordes (Wis., 1894), 58 N. W. Rep. 771; Lederer v. Chicago, etc., R. Co.. 38 Wis. 244; Bergesch v. Keevil, 19 Mo. 127. And the affidavit may be amended even though by acci- dent both the subscription of the affi- ant and the attestation of the officer were omitted. Stout v. Folger, 34 Iowa 71. Likewise where the officer neglected to sign and date an affidavit for an appeal. Green v. Boon, 57 Miss. 617. Where the affidavit was authenticated by both the signature and the seal of a notary, but the jurat did not refer to his notarial seal, it was amendable in that respect. Hal- lett v. Chicago, etc., R. Co., 22 Iowa 259, 92 Am. Dec. 393. Official Title. And where the officer neglects to give his official title the affidavit may be amended. Stone v. Miller, 60 Iowa 243; Dickson v. Thur- mond, 57 Ga. 153; Hudson v. Fishel, 17 R. I. 69. Foreign Affidavit. Where an affida- vit was made before a notary public of another state, it was not error for the court to allow the filing, by way of amendment, of an additional certificate by such notary that he was author- ized by the laws of such state to ad- minister oaths. Goldie v. McDonald, 78 111. 605. Absence of Jurat. An affidavit which is merely defective from absence of the jurat may be reformed upon proof that it was properly made before the proper officer. Re Cussick's Appeal, 136 Pa. St. 459. 10 L. R. A. 228. 2. 1483 of the Code of Mississippi of 1871. Fitzpatrick v. Flannagan, 106. U. S. 648. Act of Georgia of Oct. 25, 1889 (Acts 1888-9, P- II0 )- pear to be made on hearsay may be amended. Cutler v. Rathbone, i Hill (N. Y.) 204. Or upon information and belief. Cook v. Whipple, 55 N. Y. 150. An affidavit by a printer of the pub- lication of a summons may be amended so that it will show the date on which . Mercier, 82 Ga. 409. But in Florida substantial defects in affidavits, where jurisdictional, as in attachment, cannot be amended. Tan- ner, etc., Engine Co. v. Hall, 22 Fla. 391; Roulhac v. Rigby, 7 Fla. 336. In Maryland, before the act of an affidavit for attachment could not be amended by striking out one of the defendants. Halley v. Jackson, 48 Md. 254. Eesworn. An affidavit amended by permission of the court must, in North Carolina, be resworn to, or it will be a nullity. Atlantic Bank v. Frankford, Phil. (N. Car.) 199. Filing Nunc Pro Tune. Where the want of an affidavit was not promptly objected to, it was allowed to be filed nunc pro tune. Jones v. U. S. Slate Co., 16 How. Pr. (N. Y. Supreme Ct.) 129. Failure to Amend after Leave. After leave has been obtained to amend an affidavit of merits and there has been a failure to do so, defendant cannot insist on the sufficiency of the affidavit. McKichan v. Follett, 87 111. 103. 1. Where the names of the defend- ants were omitted from the jurat through the negligence of the judge's clerk, it was allowed by the judge to I Encyc. PI. & Pr. 22. 337 AFFIDAVITS OF MERITS OR DEFENSE. By F. A. CARD. I. DEFINITION, 338. II. IN GENERAL, 339. III. CONSTITUTIONALITY, 339. IV. WHEN REQUIRED, 341. 1. To Prerient Inquests or Judgments by Default, 341. a. To Prevent Inquests, 341. b. On Overruling a Demurrer, 342. c. Action at Common Laiv, 342. d. Action on Money Demand, 343. e. Action on Contract, 343. f. Action on Judgments, 347. g. Action of Assiimpsit, 347. 2. To Open Judgments or Inquests, 352. 3. To Extend Time to Answer or Demur, 355. 4. To Change Venue, 355. 5. On Motions Generally, 356. V. AT WHAT TIME MADE, 357. VI. BY WHOM MADE, 358. VII. CONTENTS, 360. 1. In General, 360. a. The Usual Affidavit, 360. b. When Facts are Stated, 366. c. Illinois Ride, 367. d. Pennsylvania Rule, 368. 2. By Codef endant, 37 1 . 3. By Agent, Attorney, or Clerk, 371. 4. To Obtain Change of Venue, 373. 5. Title, Jurat, etc. 374. 6. Amendments, 375. VIII. SERVICE AND FILING, 375. IX. CONTROVERTING AFFIDAVIT, 375. I. DEFINITION. An affidavit of merits represents that, upon the substantial facts of the case, justice is with the affiant. 1 1. Anderson's Law Diet.; Abb. Law groundless one; not a defense which Diet. will be successful at all events, but When a Party Swears he has a Defense good in the sense of bona fide, a de- on the merits it is understood as a fense to the merits which he ought to real, genuine, and bona-fide defense, be allowed to present and have investi- is distinguished from a frivolous or gated. McDonnell z/.Olwell, 17 111. 376. 338 In General. AFFIDAVITS OF MERITS. Constitutionality, Merits signify the legal rights of the parties, as distinguished from questions of practice and discretion. 1 II. IN GENERAL. The requirement of an affidavit of merits in certain cases was an old rule of practice in England? which has been very generally adopted in the United States. In some of the states the practice in relation to it is governed by rules of court, 3 in others by statutes, 4 which in some cases have conside/H'^y enlarged and changed the old rule. III. CONSTITUTIONALITY. The provisions of rules and statutes re- quiring a defendent to make an affidavit of merits have frequently been attacked as unconstitutional, but they have been sustained by the courts. 5 In Pennsylvania such provisions were attacked as be- ing an infringement of the right of trial by jury, but the objection was not sustained. 6 In MassacJnisetts they were sustained as 1. St. John v. West, 4 How. Pr. (N. Y. Supreme Ct.) 329; Megrath v. Van Wyck, 3 Sandf. (N. Y.) 750; Tracy v. New York Steam Faucet Mfg. Co., i E. D. Smith (N. Y.) 349; Bowman v. De Peyster, 2 Daly (N. Y.) 203. 2. Tidd Pr., vol. I, p. 302; 3 Chit- ty Genl. Pr., p. 543; Bourne v. Walker, 2 C. & M. 338; Hilton v. Jack- son, i Chit. Rep. 677, 18 E. C. L. 201; Court Rule of 1808, 3 Johns. (N. Y.) 535- 3. Rules 23 & 28, New York Supreme Ct. ; Rule 99, Michigan Supreme Ct. ; Rule 73, District of Columbia Circuit Ct. 4. Laws of 1844, p. 2, II, Michigan; 980, New York Code of Civil Pro- cedure; Sts. of 1874 (10 Session 61), Colorado; Laws of 1874, ch. 248, 3, Massachusetts; 697 Mississippi Code of 1892; Act of May 25, 1887, of Penn- sylvania, p. 8271; Laws of Illinois as amended June 2, 1877, Kurd's 111. Sts., p. 1047, g 37, ed. of 1891. Uniformity of Practice. The practice of the various states is not uniform as to the cases in which such an affidavit is required or as to its contents, and is subject to frequent changes. But in the application of the rules a certain uniformity exists which appears from an examination of the decisions on the subject. 5. Vanatta v. Anderson, 3 Binn. (Pa.) 423; Hoffman v, Locke, 19 Pa. St. 57; Lord v. Ocean Bank, 20 Pa. St. 387, 59 Am. Dec. 728; Lawrence v. Borm,86 Pa. St. 225; Randall v. Weld, 86 Pa. St. 357; Lawrence v. Smedley 6 W. N. C. (Pa.) 42; Honeywell v., Toney, 5 Kulp (Pa.) 360; Krause v. Pennsylvania R. Co., 20 W. N. C. (Pa.) in; Kauffman z/. Jacobs, 4 Pa. Co. Ct. Rep. 462; Hunt v. Lucas, 99 Mass. 404; Merchants' Nat. Bank v. Glendon Co., 120 Mass. 97; McDonnell v. Ol- well, 17 111. 375; Roberts v. Thomson, 28 111. 79; Honore v. Home Nat. Bank, 80 111. 489. 6. In Pennsylvania. In the case of Vanatta v. Anderson, 3 Binn. (Pa.) 422, the question was raised as to the constitutionality of a rule of the Court of Common Pleas of Philadelphia, which provided that " in all actions on contract or debt the plaintiff shall be at liberty to enter judgment unless the defendent or some person for him shall make and file an affidavit that to the best of his or her knowledge and belief there is a just defense in the said case." It was contended for de- fendant that the rule infringed the right of trial by jury, and was a spe- cies of judicial legislation which the court had no power to make. Both contentions were overruled, and the rule was held constitutional and with- in the power of the court. In the course of the opinion it was said: " The rule makes no alteration in the right of trial by jury, but only pro- vides that previous to the trial the de- fendant shall swear or affirm that to the best of his knowledge and belief he has a just cause of defense." A similar question was raised and de- cided in the same way in Harres v. Com., 35 Pa. St. 416. In Hoffman v. Locke, 19 Pa. St. 59, the question was raised as to the con- stitutionality of an act of the legisla- ture requiring a defendant to make an affidavit of defense in certain actions, disclosing the facts of his defense. In 339 Constitutionality. AFFIDAVITS OF MERITS. Constitutionality. in accordance with the common law ;* and in Illinois they were considered as mere provisions of practice entirely within the control of the legislature. 2 holding the act constitutional the court said: "The clause of the constitution which forbids it is not pointed out, and I am ignorant of any provision which secures to the good people of this commonwealth the privilege of making false defenses to just claims. The law is not only constitutional, but eminently wise and necessary. It is no tyranny to require that a good de- fense should be fully and fairly stated on the record, and no hardship to verify it on oath." The constitutionality of a similar act of the legislature was again vigor- ously attacked in Lawrence v. Borm, 86 Pa. St. 225, on the ground that it infringed the right of trial by jury. In holding the act constitutional it was said: "While the sacredness of this reserved right cannot be impaired by the legislature, we are unable to see that the law in question does in- fringe it. Clearly if a defendent in an action presents no defense to be tried by a jury, he cannot claim that his privilege is denied him. The affidavit of defense is but a special plea made on oath by which the defendant pre- sents the facts of his case for the con- sideration of the court. At no time in the history of civil proceedings has it been held that the right of trial by jury involves the right of the jury to decide the law of the case. A plea in abatement and in other cases * must be put in under oath. * There cannot be an objection to the fact that a party is obliged to state his plea or his defense under oath. This is but a means to prevent delay by falsehood and fraud. * * * It is a misconception of the right of trial by jury to suppose that it draws the pleadings, no matter what their form, from the court to the jury. The affi- davit of defense is only a modern but vuluable mode of making up the issue for the jury; and when, on a state- ment of all the facts a defendant can conscientiously swear to, the court finds the law upon these facts is against him, he has no right to go be- fore a jury." 1. Massachusetts. An act of the leg- islature of Massachusetts provided that in all actions at law plaintiff could enter judgment by default unless de- fendant or some one on his behalf filed an affidavit to the effect "that he verily believes that the defendant has a substantial defense to the action on its merits and intends to bring the same to trial." In sustaining the constitutionality of said act it was said in Hunt v. Lucas, 99 Mass. 40.4: "The system of pleading was intended to require of parties written statements of what they believed to be true. In some cases the common law required a defendant not only to state his de- fense, but to make oath to it. In actions of debt and several other species of ac- tion the plaintiff might require him to wage his law, and this must be done upon oath. In suits in equity a de- fendant has always been required to make oath to the truth of his answer. * * * These provisions were more stringent than that of our statute re- quiring an affidavit of defense. But when our Constitution was framed they had never been regarded as any infringement on those rights which are declared in the clauses referred to. Nor is there any reason to believe that the Consti- tution was designed to prohibit the legislature from enacting reasonable laws in regard to pleadings in civil actions, or from requiring averments to be supported by affidavit." 2. Illinois. A statute of Illinois pro- vided that in certain actions plaintiff should be entitled to judgment unless defendant, his agent or attorney, shall file with his plea an affidavit stating " that he verily believes he has a good defense to said suit upon the merits, to the whole or a portion of the plain- tiff's demand, and if a portion, speci- fying the amount according to the best of his judgment and belief." In holding this statute constitutional it was said: "The General Assembly has the undoubted right and ample power to prescribe the practice of our courts, and to alter and change the same as they may think the promotion of practice requires. We have never heard it questioned that the General Assembly has the power to require any and all pleadings to be sworn to as a condition precedent to their being 34 Wkea Eequired. AFFIDA VI TS OF MERITS. To Prevent Inquests. IV. WHEN REQUIRED 1. To Prevent Inquests or Judgments by Default. Rules of practice have required an affidavit of merits to prevent an inquest in cases where it is allowed. 1 And rules of practice and statutes require an affidavit of merits to prevent the plaintiff taking judgment by default when defendant's demurrer to the plaintiff's declaration is overruled ; 2 in all actions at common law ; 3 in actions of contract, debt, or assumpsit upon a money bond, promissory note, or bill of exchange, where defendant is sued in his individual capacity; 4 in actions on con- tract, express or implied, for the payment of money, where plain- tiff files with his declaration an affidavit showing the nature of his demand and the amount due to him from the defendant ; 5 and in all actions of assumpsit where the plaintiff files with his declaration copies of the contract or notes, etc., sued on or a reference to a record upon which suit is brought. 6 a. To PREVENT INQUESTS. In New York inquests may be taken for want of a sufficient affidavit of merits in all common-law actions. 7 The rule does not apply to actions in equity, 8 nor where the only defense is a set-off to which there is no reply, 9 nor to a plaintiff, 10 nor where a case is called in its order on the calen- dar. 11 filed in a case, and this is the effect of this statute, and its only effect." Ho- nore v. Home Nat. Bank, 80 111. 489. 1. Rule 28, New York Supreme Court; 3 Wait's Practice (N. Y.) 44; 3 Johns. (N. Y.) 535- 2. Mississippi Code (1892), 6g7;Og- den v. Slidewell, 5 How. (Miss.) 181. 3. Hunt v. Lucas, 99 Mass. 404. 4. Rule 99, Michigan Supreme Court; I Greene's New Practice (Mich.) p. 239. 5. Hurd's Revised Statutes of Illi- nois (ed. of 1891, p. 1047, 37); Young v. Browning, 71 111. 44; Kassing v. Griffith, 86 111. 265; Rule 73, Circuit Court of the District of Columbia; Cog- ley's Dig. Dist. of Columbia 512, 7; Rule 121, Supreme Court Dist. of Co- lumbia, ch. 184, 170 and 171 ; Laws of 1886 of Maryland. 6. Laws of Penn. passed May 25th, 1887, P. L. p. 271, No. 158; Marlin v. Waters, 127 Pa. St. 177; Fritzs. Hath- away, 135 Pa. St. 274; Newboldw. Pen- nock, 154 Pa. St. 591; Flegal v. Hoo- ver, 156 Pa. St. 276. 7. New York. Rule 28 of New York Supreme Court provides that inquests may be taken in actions out of their order on the calendar in cases in which they are allowed on any day after the first day of court, provided a suffi- cient affidavit of merits shall not have been filed and served, and provided the answer shall not been verified. This was a repetition of an old rule made in 1808. 3 Johns. (N. Y.) 535. It was held to apply to all common- law actions. 3 Wait's Practice (N. Y.) 44. But in actions at law the plaintiff can take an inquest for want of a suffi- cient affidavit of merits. Brainard v. Hanford, 6 Hill (N. Y.) 368; Richmond v. Cowles, 2 Hill (N. Y.) 359; Sand- land v. Adams, 2 How. Pr. (N. Y.) 98; Jones -v. Russell, 3 How. Pr. (N. Y. Supreme Ct.) 324; Howe^. Hasbrouck, i How. Pr. (N. Y.) 168; Miller v. Hooker, 2 How. Pr. (N. Y.) 124; John- son -v. Lynch, 15 How. Pr. (N. Y. Super. Ct.) 199; Clark v. Parker, 19 Wend. (N. Y.) 125; Cutler v. Biggs, 2 Hill (N. Y.)4og; Anderson v. Hough, I Sandf. (N. Y.) 721. 8. It does not apply to actions in equity in which there is no jury trial and can be no inquest, 3 Wait's Prac- tice (N. Y.) 45; Devlin v. Shannon, 8 Hun (N. Y.) 531. 9. Potter -v. Smith, 9 How. Pr. (N. Y. Supreme Ct.) 162. 10. Regan. v. Priest, 3 Den. (N. Y.) 163. 11. The rule allowing inquests to be taken in cases out of their order on the calendar does not apply where a case is called in its order on the calen- dar. When that is done the defendant 34i When Bequired. AFFIDA VI TS OF MERITS. To Prevent Inquests. A verified answer is equivalent to an affidavit of merits. 1 b. ON OVERRULING A DEMURRER. In Mississippi when a demurrer is overruled the party demurring must make an affi- davit of merits to prevent judgment. 2 The rule does not apply where the demurrer is withdrawn or confessed. 3 Where the de- fendant's demurrer is sustained and plaintiff wishes to amend it is held that he must file an affidavit of merits. 4 An affidavit " that the plea is true," or one " setting out the grounds of a legal defense," is sufficient. 5 c. IN ACTIONS AT COMMON LAW. In Massachusetts an affi- davit of merits was formerly necessary to prevent judgment by default in common-law actions. 6 But it is required now only in cases of money demands, where the plaintiff verifies his claim and swears there is no defense. 7 can appear and defend, although he has not filed or made an affidavit of merits. Starkweather v. Carswell, I Wend. (N. Y.) 77. But in such a case, if defendant fail to appear and defend, he cannot object to an inquest taken. Kerker v. Carter, i Hill (N. Y.) 101. 1. Formerly a verified answer would not take the place of an affidavit of merits for the purpose of preventing an inquest. Sheldon v. Martin, i Code Rep. (N. Y.) 81; Anderson v. Hough, i Sandf. (N. Y.) 721, i Code Rep. (N. Y.) 50; Jones v. Russell, 3 How. Pr. (N. Y. Supreme Ct.) 324, i Code Rep. (N. Y.) 113. But now 980 of the New York Code of Civil Procedure provides that" An in- quest for want of an affidavit of merits cannot be taken where the answer is verified." 2. Mississippi. 697 of the Mississippi Code of 1892 provides " that if the de- murrer of the defendant to the plain- tiff's declaration be overruled, the court shall give judgment for the plaintiff for the amount due and in- terest, and a plea shall not be admitted unless the defendant make oath that he has a good and substantial defense, setting forth fully the nature of the defense, that the court may judge whether the plea ought to be admitted or not." This was a substantial re- enactment of a statute passed in 1840. Ogden v. Glidewell, 5 How. (Miss.) 181. Under this provision plaintiff can obtain leave to plead when his de- murrer is overruled only upon filing an affidavit of merits. Robertson v. Banks, I Smed. & M. (Miss.) 666; Drane v. Board of Police, 42 Miss. 264. 3. Ogden v. Glidewell, 5 How. (Miss.) 181; Shaw v. Brown, 42 Miss. 309- 4. If defendant's demurrer is sus- tained and plaintiff amends his decla- ration, it has been held that the plaintiff must file an affidavit of mer- its. Ross z>. Sims, 27 Miss. 359. 5. Johnson v. Beard, 7 Smed. & M. (Miss.) 214; Shaw v. Brown, 42 Miss. 309- 6. Massachusetts. A statute of Massa- chusetts provided that in all actions at common law the plaintiff could take judgment by default unless the de- fendant or some one in his behalf should file an affidavit stating "that he verily believes that the defendant has a substantial defense to the action on its merits and intends to bring the same to trial." Hunt v. Lucas, 99 Mass. 404. This statute was repealed in 1870. 7. In 1874 an act was passed pro- viding substantially "that in all ac- tions where plaintiff seeks to recover a debt or liquidated demand in money, payable by defendant with or without interest, if defendant appears, plaintiff, on an affidavit verifying his cause of action and swearing that in his belief there is no defense, may enter an or- der for defendant to show cause why he should not consent to judgment by default, or describe by affidavit, or in such manner as the court directs, such facts as shall constitute a defense, or such as the court may think sufficient to entitle him to defend, and the court shall advance such action for speedy trial. The court shall require defend- ant to disclose specifically and clearly the substantive facts on which he re- 342 When Bequired. A F FID A VI TS OF MERITS. To Prevent Inquests. d. IN ACTIONS ON MONEY DEMANDS. In Michigan an affi- davit of merits is necessary to prevent judgment by default in actions on money demands where defendant is sued in his indi- vidual capacity. 1 e. IN ACTIONS ON CONTRACT, WHERE PLAINTIFF FILES AN AFFIDAVIT OF THE AMOUNT DUE. In several of the states defendant is required to make an affidavit of merits to prevent judgment by default in actions on contract where the plaintiff files an affidavit of the amount due him from the defendant.'-* lies." Laws of Mass. 1874, ch. 248, 3- Under this statute it was held that it rested in the discretion of the court whether to open a judgment taken against a defendant for failure to com- ply with an order entered thereunder, and that the appellate court would not on appeal interfere with such discre- tion. Rogers -v. Ladd, 117 Mass. 334. It was also .held that the plaintiff's affida- vit of no defense need not comply strictly with the statute in stating the nature of the cause of action, and that independently of the statute the court has power to advance causes for speedy trial. Merchants' Nat. Bank v. Glendon Co., 120 Mass. 97. 1. Michigan. Rule 99 of the Su- preme Court of Michigan provides "that in action of covenant, debt, or assumpsit, upon a money bond, promissory note, or bill of exchange, where defendant is sued in his indi- vidual capacity, the plaintiff may no- tice the cause for trial as an inquest, and an inquest may be taken therein at the opening of the court on any day in term after the first, unless the de- fendant or his attorney shall, before the first day of the term, have filed an affidavit of merits and served a copy thereof on plaintiff's attorney." i Green's New Pr. 239. A statute of 1844 of Michigan allowed inquests for default of an affidavit of merits in all actions on contracts. Brown v. Cowee, 2 Dougl. (Mich.) 432. But rule 99 has superseded it. Rule 59 of the Michi- gan Supreme Court prescribes the form of the affidavit of merits, and in the absence thereof an inquest and judg- ment by default for plaintiff may be taken, i Green's New Pr. 239-241. Rule 63 of Michigan Chancery pro- vides that when a case is to be heard on pleadings, or pleadings and proofs, it will be entitled to a prefer- ence on the calendar unless defendant files an affidavit that he has a good and meritorious defense, and that his. answer was not put in for the purpose of delay. 2. Illinois. A statute of Illinois passed in 1872, and amended in 1877, provides "that if the plaintiff in any suit upon contract, express or implied, for the payment of money, shall file with his declaration an affidavit show- ing the nature of his demand and the amount due him from the defendant after allowing to the defendant all his just credits, deductions, and set-offs, if any, he shall be entitled to judgment as in case of default, unless the de- fendant or his agent or attorney (if the defendant is a resident of the county in which the suit is brought) shall file with his plea an affidavit stating ' that he verily believes he has a good defense to said suit upon the merits, to the whole or a portion of the plaintiff's demand, and, if a por- tion, specifying the amount according to the best of his judgment and be- lief.' Upon good cause shown the time for filing such affidavit may be extended for such reasonable time as the court shall order. No affidavit of merits need be filed with a demur- rer or motion. Provided that this section shall not apply to any case where an executor or administrator shall defend on behalf of an estate, and provided further that if the plain- tiff, his agent or attorney, shall file an affidavit stating that affiant is taken by surprise by such plea and affidavit of merits, and that he believes that plaintiff has testimony to support his claim against the defendant which he cannot produce at that term of court, but expects to produce by next term, the court shall continue such cause until the next term." Hurd's Rev. Sts. of Illinois, ed. of 1891, p. 1047, 37- A rule of the Superior Court of Chi- cago provides that, in actions on con- tract, plaintiff, by making an affidavit 343 When Required. AFFIDA VITS OF MERITS. To Prevent Inquests. Under such provisions the plaintiff must file the affidavit of amount due if he wishes to compel defendant to file an affidavit that he believes the defense is put in only for delay, may compel the defend- ant to state the facts of his defense in an affidavit, or have the cause tried out of its order on the calendar. Wall- baum v. Haskin, 49 111. 313. But such a rule is void as contrary to the pro- visions of the Constitution providing that practice in courts of the same grade shall be uniform, and the stat- ute furnishes the rule for plaintiff to follow if he would compel defendant to make an affidavit or obtain judg- ment by default. Angel v. Plume, etc., Mfg. Co., 73 111. 412. Maryland. Ch. 184 of the Laws of 1886 of Maryland in relation to actions in the Superior Court of Baltimore, the Court of Common Pleas, and the Baltimore City Court provides as fol- lows: " 170. In any suit where the cause of action is a contract, whether in writing or not, or whether express or implied, the plaintiff, if affidavit or affirmation be made as hereinafter stated, shall be entitled to judgment to be entered by the court or the clerk thereof on motion in writing at any time after fifteen (15) days from the return day to which the defendant shall have been summoned, although the defendant may have pleaded, un- less such plea contains a good de- fense, and unless the defendant or some one in his behalf shall under oath or affirmation state that every plea so pleaded by the defendant is true, and shall further state the amount of the plaintiff's demand, if anything, admitted to be due or owing, and the amount disputed ; and fur- ther, that the affiant verily believes the defendant will be able at the trial of the cause to produce sufficient evi- dence to support the said plea as to the portion disputed, and that he is ad- vised by counsel to file the said plea ; and such plea shall be accompanied by a certificate of counsel that he so advised the party making such oath or affirmation; and if the copartner- ship or incorporation of any of the parties to the suit shall be alleged in the declaration and the affidavit to be pleaded therewith as hereinafter pro- vided, or if there shall be filed with the declaration in said cause any paper pur- porting to be signed by any defendant therein, the fact of said alleged co- partnership or incorporation, and the genuineness of such signature, shall be deemed admitted for the purposes of said cause, unless the said affidavit shall further state that the affiant knows or has good reason to believe such allegation of copartnership or incorporation to be untrue, or that such signature was not written by or by the authority of the person whose signature it purports to be." " 171. The plaintiff shall not be en- titled to judgment under the preced- ing section unless at the time of bring- ing his action he shall file with his declaration an affidavit or affirmation if the affiant is conscientiously scru- pulous as to taking an oath stating the true amount the defendant is in- debted to him over and above all dis- counts, and shall also file the bond, bill of exchange, promissory note, or other writing or account by which the defendant is so indebted; or, if the ac- tion be founded upon a verbal cr im- plied contract, shall file a statement of the particulars of the defendant's in- debtedness thereunder; if there are two or more plaintiffs the affidavit or affirmation may be made by any one of them, or if all the plaintiffs be absent from the state at the time of the bring- ing of the said suit, or if the plaintiff be a corporation, the said affidavit or affirmation may be made by any agent of plaintiff or plaintiffs, or any of them, who will make further oath or affirmation that he has personal knowledge of the matter therein stated." Under this statute it was held that the purpose of the act was to prevent a defendant from putting in a plea of the general issue and swearing to the truth of it, where a part of plaintiff's demand was due, and 'his declaration was true as to that part, and to com- pel a defendant in such a case to ad- mit on the record that part of the de- mand was due if such was the truth. Hence, where, to an action on a note, defendant pleaded that he never prom- ised as alleged, and was never indebted as alleged, and made affidavit that his plea was true, held, bad for not stat- ing the amount of plaintiff's demand admitted, and amount denied. Adler v. Crook, 68 Md. 494. District of Columbia. Rule 73 Cir- 344 When Bequired. AFFIDA VI TS OF MERITS. To Prevent Inquests. of merits. 1 By pleading over it has been held that plaintiff does not waive the right to require an affidavit of defense from defend- ant. 2 In Illinois the defendant's affidavit should be filed with his plea, 3 but it is not necessary on motions, demurrers, or pleas in cuit Court of the District of Columbia provides : " That in actions arising in contract, if plaintiff or his agent shall have filed at the time of bringing his action an affidavit setting out dis- tinctly his cause of action and the sum he claims to be due, exclusive of all set-offs and just grounds of defense, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to judgment for the amount claimed with interest and costs, unless the defend- ant shall file along with his plea, if in bar, an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his de- fense, which must be such as would, if true, be sufficient to defeat the plain- tiff's claim in whole or in part. And where the defendant shall have ac- knowledged in his affidavit of defense his liability for a part of the plaintiff's claim as aforesaid, the plaintiff, if he so elect, may have judgment .entered in his favor for the amount so con- fessed to be due. The provisions of this rule shall not apply to defendants who are representatives of decedents' estates, except where the affidavit filed with the declaration sets forth that the contract sued on was directly with such representative, or that a promise to pay was made by him. When the de- fendant is a corporation the affidavit of defense may be made by an officer, agent, or attorney of such corporation." Cogley's Digest, District of Columbia, 512, 7. Under this rule it was held that, where defendant admits part of plaintiff's claim to be due, and but one cause of action is sued on, if plaintiff elects to take judgment for the part admitted to be due, that ends the con- troversy, and the court, on motion of defendant, will discontinue plaintiff's suit for the balance over the amount admitted by defendant. If plaintiff does not want to accept the amount admitted due, he can join issue on the defense and go to trial. But he cannot accept judgment for the amount admitted, and go to trial as to the bal- ance of his claim. Kennedy v. Poal, 5 Wash'. L. Rep., 129. 1. Plaintiff's affidavit. Under the statute it rests with the plaintiff whether to file an affidavit with his declaration or not; the only effect of his not doing so is that the defendant can plead without an affidavit of merits. Kern v. Strasberger, 71 111. 303- But if plaintiff wants to compel de- fendant to file an affidavit of merits, or wants to obtain judgment by default, he can only do so by complying with the statute, and filing an affidavit with his declaration. Fisher z>. National Bank, 73 111. 34; Kidder v. Rand, 73 111. 38; Angel v. Plume, etc., Mfg. Co., 73 111. 412. Plaintiff need not file his own affidavit; the statute says an affidavit. Young v. Browning, 71 111.44; Honore, v. Home NaJ. Bank, 80 111. 489. An affidavit by one of several plain- tiffs showing the nature and amount of the demand is sufficient. Haggard v. Smith, 71 111. 226. Default. Where plaintiff has com- plied with the statute, and filed with his declaration such an affidavit as the statute requires, he can take judgment by default unless the defendant files an affidavit of merits, as required by the statute. Young z>. Browning, 71 111. 44; Goldie v. McDonald, 78 111. 605; Filkins v. Byrne, 72 111. 101; Mestling v. Hughes, 89 111. 389; Pierson v. Hendrix, 88 111. 34; Chicago, etc., R. Co. v, Bank of N. A., 82 111. 493; Kas- sing v. Griffith, 86 111. 265; Mayberry v. Van Horn, 83 111. 289; Coursen v. Browning, 86 111. 57; Wayne v. Stern, 75 111. 313; Truesdellz/. Hunter, 28 111. App. 292. To prevent default where plaintiff has filed the required affidavit, the de- fendant must file an affidavit of merits, although he files with his plea a mo- tion to strike the plaintiff's affidavit from the files. Kassing v. Griffith, 86 111. 265. 2. Williams v. Richland, 16 111. App. 333; McDowell v. Hunter, 22 111. 28. Contra, Hutton v. Marx, 69 Md. 252. 3. Defendant must file his plea with his affidavit; the affidavit of merits without a plea will not prevent judg- ment by default. Scammon v. McKey, 21 111. 554. But a plea will not take the place of the affidavit; and where, 345 When Required. AFFIDAVITS OF MERITS. To Prevent Inquests. abatement. 1 The defendant must file an affidavit of merits in actions on distress warrants, appeal bonds, and on appeal from justice courts. 2 In Maryland 'it is held that the defendant's affidavit must clearly show to what part of plaintiff's demand it applies in order to prevent judgment ; 3 while in Illinois it is sufficient if it follows the statute. 4 Where the affidavit of merits concedes part of plaintiff's claim it has been held that plaintiff might take judgment for that part without regard to the defense to the bal- ance of the claim. 5 in an action on a promissory note, de- fendant filed a verified plea denying the execution of the note, held, not a compliance with the statute, and that it was properly stricken from the files. Bank of N. A. v. Chicago, etc., R. Co., 82 111. 493. But where several were sued as partners, verified pleas deny- ing joint liability were held equivalent to an affidavit of merits under the stat- ute. Fergus v. Cleveland Paper Co., 3 111. App. 629. Leave to file an amended affidavit of plaintiff's claim extends the time to file an affidavit of merits. Healy v. Charn- ley, 79 111. 592. 1. The statute provides that an af- fidavit of merits is not necessary on motion or on demurrer. The statute of 1874 provided also that it was not necessary on filing a plea in abate- ment; and although the provision as to plea in abatement is omitted from the present statute, an affi- davit of merits is not required with such a plea, but it must be verified, viz., sworn to be true. Chicago, etc., Co. v. Congdon, etc., Mfg. Co., in 111. 309; Ricker v. Scofield, 28 111. App. 32. But when a plea to the merits is put in, it must be accompanied by an af- fidavit of merits. Kassing v. Griffith, 86 111. 265. The affidavit is part of the plea and part of the record on appeal. Whiting v. Fuller, 22 111. 33; Williams v. Reynolds, 86 111. 263. 2. Distress Warrant. Where plain- tiff files an affidavit of claim with a distress warrant, the defendant must file an affidavit of merits, for this pro- ceeding is made by statute a suit in contract, and is for the payment of money. Bartlett v. Sullivan, 87 111. 219. Appeal Bond. Where an action is brought on an appeal bond, it is an ac- tion on contract for the payment of money; and if plaintiff files the affidavit required by the statute, defendant must file an affidavit of merits to pre- vent judgment by default. Mestling v. Hughes, 89 111. 389; Coursen v. Browning, 86 111. 57; Myers v. Shone- man, 90 111. 80. Appeals from Justice Courts. Where an action, begun before a justice court with an affidavit of claim is appealed, defendant need not file an affidavit of merits until the case is reached for trial. Martin v. Hochstadter, 27 111. App. 166; World's Soap Mfg. Co. v. Woltz, 27 111. App. 302. 3. Where, in an action on an open account, the plea of the statute of limi- tations was interposed, with an af- fidavit of its truth, it was held not suf- ficient to prevent a judgment by de- fault because it did not state to what items of the account it applied, and hence did not show what part of plain- tiff's claim was admitted and what de- nied. Hutton v. Marx, 69 Me. 252; Maryland Court of Appeals, June 13, 1888. But where a defendant, sued in as- sumpsit, pleads payment and full satis- faction of plaintiff's claim, and makes affidavit that his plea is true, held, suf- ficient, and that he need not state the amount admitted and the amount dis- puted, as this would be surplusage where full payment is alleged. And qu&re, whether the statute applies to actions against executors on debts of their testator, as they could not have knowlenge of the facts, and the ap- parent intent of the act is to have the affidavit of a person having knowledge of the facts. May z>. Wolvington, 69 Md. 117; Maryland Court of Appeals, June 13, 1888. 4. An affidavit of merits is sufficient if it states that defendant has a de- fense upon the merits in the language of the statute. McCormick v. Wells, 83 111. 239. 5. Where the affidavit of merits filed with a plea goes only to a part of the plaintiff's demand, it is a virtual admis- sion that the part excepted is due, and plaintiff may concede the defense to 346 When Required. AFFIDAVITS OF MERITS. To Prevent Inquests. /. ACTIONS ON JUDGMENTS. In the District of Columbia an affidavit of merits is required in actions on judgments to render defendant's plea valid. 1 g. IN ACTIONS OF ASSUMPSIT ACCOMPANIED BY STATEMENT OF PLAINTIFF'S DEMAND. In Pennsylvania by statute an affi- davit of defense is necessary to prevent judgment by default in actions of assumpsit, where the plaintiff files or serves a state- ment of his claim or demand. 2 Prior to the' passage of this act various statutes on the subject existed, which are repealed so far as inconsistent therewith, and a uniform rule is established. 3 the part alleged and take judgment for the balance without regard to a plea to the entire cause of action. Henry v, Meriam.etc., Paraffine Co., 83 111. 461; Watt v. Allen, 69 111. 655; Mayberry v. Van Horn, 83 111. 289; Williams v. Reynolds, 86 111. 263; Haggard v. Smith, 71 111. 226. Contra, Kennedy v. Poal, 5 Wash. L. Rep. 129. Where defendant's affidavit of merits discloses to only a part of the entire cause of action, and plaintiff concedes such defense, defendant cannot put in a different defense to the en tire cause of action. Allen v. Watt, 69 111. 655. 1. Rule 121 of the Supreme Court of the District of Cohtmbia provides that in cases of scire facias on judgments, and in actions on judgments of a state court or a court of the United States, any plea thereto shall be treated as a nullity unless an affidavit accompanies the plea, showing a defense to the ac- tion. Held, that this rule applied to all judgments, however rendered, if the court which rendered it had juris- diction, and that, unless want of ju- risdiction was shown, such an affidavit of defense must be made to pre- vent a judgment. Loeber v. Moore, 19 Wash. L. Rep. 194. 2. Pennsylvania Statute. An act of the legislature of Pennsylvania, passed May 25, 1887, P. L., p. 271, No. 158, provides, 3: "The plaintiff's decla- ration shall consist of a concise state- ment of plaintiff's demand . . and in the action of assumpsit shall be accompanied by copies of all notes, contracts, book entries, or a particular reference to the records of any court within the county in which the action is brought (if any) upon which the plaintiff's claim is founded; and a par- ticular reference to such record, or to the records of any deed or mortgage or other instrument of writing re- corded in such county, shall be suffi- cient in lieu of the copies thereof. The statement shall be signed by the plain- tiff or his attorney, and in the action of assumpsit shall be replied to by affi- davit. 4. The plaintiff shall be at liberty, in each of said actions, to serve copies of his statement upon the defendants. If such service be made not less than fifteen (15) days before the return day of the writ, it shall be the duty of the defendant in the action of assumpsit to file an affidavit of de- fense on or before the return day. 5. In the action of assumpsit judg- ment may be moved for, for want of an affidavit of defense, or for want of a sufficient affidavit for the whole or part of the plaintiff's claim, as the case may be, in accordance with the present practice in debt and assump- sit. 6. If the plaintiff shall neglect to serve his statement at least fifteen (15) days before the return day of the writ, he may file it on or at any time after the return day; and in the action of assumpsit, unless the defendant shall file a sufficient affidavit of de- fense within fifteen (15) days after no- tice that said statement has been filed, the plaintiff may move for judgment for want thereof. 9. That all laws or parts of laws inconsistent herewith be and the same hereby are repealed." 3. Previous Statutes Effect of Lat- ter Act. Prior to the passage of this statute there existed various statutory provisions relating to an affidavit of defense in certain ac- tions, providing substantially that in all actions on bills, notes, bonds, or other instruments in writing for the payment of money or for the recovery of book debts, or on judgments on me- chanics' liens or contracts for the loan of money, or on bonds or recogni- zances, etc., when the plaintiff filed copies of the instrument or contract sued on, or referred to the record 347 When Required. AFFIDA VI TS OF MERITS. To Prevent Inquests. To What Actions Applicable. The provisions requiring an affidavit of defense have been held to apply to all actions of assumpsit, to actions against married women, to foreign attachments, actions against public officers and corporations, and to appeals ;* and thereof, the plaintiff could enter judg- ment by default unless the defendant filed an affidavit of defense stating therein the nature and character of the same. Act of March 28, 1835, P. L. 89; Act of March n, 1836, P. L. 79; Act of March 12, 1842, P. L. 66; Act of April 4, 1846, P. L. 328; Act of May 4, 1874, P. L. 159- These acts were not expressly re- pealed by the act of 1887, but so far as inconsistent with it they are repealed thereby, and the act of 1887 now gov- erns the practice in relation to an affi- davit of defense. Gould v. Sage, 118 Pa. St. 559; Marline. Waters, 127 Pa. St. 177; Fritz v. Hathaway, 135 Pa. St. 274; Newbold v. Pennock, 154 Pa. St. 591; Flegal v. Hoover, 156 Pa. St. 276. And a rule of court allowing judgments contrary to such statute is of no force and void. Marlin v. Waters, 127 Pa. St. 177. But it did not change the former practice where not inconsistent therewith, and not provided for in the act of 1887. Fie- gal v. Hooner, 156 Pa. St. 276; Sted- man v. Paterie, 139 Pa. St. 101. Thus the defendant is still required to state the facts constituting his defense as under the former provisions. Flagg v. Taylor (Del., 1888), 14 Atl. Rep. 26; Superior Nat. Bank v. Stadelman, 153 Pa. St. 634; Newbold v. Pennock, 154 Pa. St. 591; Clarke v. Allen, 132 Pa. St. 40. The act of 1887 was held constitutional, Honeywell v. Toney, 5 Kulp (Pa.) 360; Kauffman v. Jacobs, 4 Pa. Co. Ct. Rep. 462; and to apply to actions pending when it was passed, Krause v. Pennsylvania R. Co., 20 W. N. C. (Pa.) in; Insurance Co. v. Reinoehl, 5 Lancaster Law Rev. (Pa.) 3. 1. The Act Applies to all Actions of As- sumpsit where a proper statement is filed by the plaintiff, whether the ac- tion is founded on a book account or on contract, and whether the contract, etc., is in writing or oral. Blanchard v. Hunter, 7 Pa. Co. Ct. Rep. 552; Frederic! v. Insurance Co., i Mona- han (Pa.) 493. Married Women. The act extends to an action against a married woman for a debt contracted by her dum sola, Wanamaker v. Gray, 15 W. N. C. (Pa.) 112; Sharpler v. Elliot, 17 W. N. C. (Pa.) 478; also to an action on a claim for which on its face it appears she or her estate is liable, Alworth v. Al- worth, 4 Law Times N. S. (Pa.) 188; Steinman v. Henderson, 94 Pa. St. 313. But not to a suit against her for necessaries. Cooper v. Wallace, 7 W. N. C. (Pa.) 468. Nor to a suit against her and her husband on a book ac- count, where it is not averred that the goods were sold to the wife or pur- chased on her credit. Sheedy v. Tinker, 40 Leg. Int. (Pa.) 360. See Scott v. Wilmer, i W. N. C. (Pa.) 41; Eisen- bery v. Negus, 2 W. N. C. (Pa.) 445; Schlecht v. Watson, 3 W. N. C. (Pa.) 43; Defraham v. Walker, 3 W. N. C. (Pa.) 26. Foreign Attachments. Under the act of 1887 it has been held that an affi- davit of defense is necessary in a case of foreign attachment. Hubbard v. Dorman, 7 Pa. Co. Ct. Rep. 384; Smith v. Eyre, 26 W. N. C. (Pa.) 214. The contrary was held in Paff v. North Bangor Co., 5 Lancaster Law Rev. (Pa.) 301; and also under the former law, Roberts v. Hugg, 2 Miles (Pa.) 283. Public Officers. The act does not apply to proceedings against public officers who have given bonds, with sureties, and no affidavit of defense is necessary in such cases. Com. z-. Morris, 5 Kulp (Pa.) 488. Contra, Bailey v. Com. (Pa., 1887), 10 Atl. Rep. 764. Corporations. In actions of assump- sit against corporations an affidavit of defense must be filed, although a re- ceiver has been appointed therefor. Hays v. Pittsburgh, etc., R. Co., 27 Pittsb. L. J. (Pa.) 105. Municipal Corporation. Whether an affidavit of defense must be made in an action against a municipal corporation was not decided. Malone v. Phila- delphia, 132 Pa. St. 209. Appeals. When plaintiff makes a statement on appeal defendant must file an affidavit of merits. Lanfer v. Landis, 23 W. N. C. (Pa.) 460. The act applies to appeals from a justices' judgment, and defendant must file an affidavit of defense thereon. Connelly 348 When Required. AFFIDA VI TS OF MERITS. To Prevent Inquests. not to apply to actions for torts, against lunatics, on implied con- tracts, on judgments, against infants, executors, administrators, or heirs. 1 Plaintiffs statement. To compel the defendent to present an affi- davit of defense the plaintiff must serve or file a proper statement showing a prima-fade liability on the part of the defendant. 58 The v. Wilson, 6 Pa. Co. Ct. Rep. 421; Horner v. Horner, 145 Pa. St. 258, 29 W. N. C. 420. 1. Actions for Torts. But it does not apply to actions for torts. Berlin v. Com., 99 Pa. St. 42; Reed v. Bush, 5 Binn. (Pa.) 457. An action against a national bank to recover penalties for taking usury is an action ex delicto, and hence no affidavit of defense is necessary there- in, although the action is in the form of assumpsit. Osborn v. First Nat. Bank, 154 Pa. St. 134. And see Boyd v. Turner, I Browne (Pa.) 133; Union Glass Co. -u. First Nat. Bank, 10 Pa. Co. Ct. Rep. 565. Lunatics. The act does not apply to a defendant found by inquisition to have been a lunatic at the time the contract sued on was executed. Philadelphia Trust Co. v. Kneedler, 13 Phila. (Pa.) 421, 35 Leg. Int. (Pa.) 234. The former act held not to ap- ply to an action against a lunatic or his committee. Alexander v. Ticknor, I Phila. (Pa.) 120. Implied Contracts. Under the former law it was held to apply not to im- plied, but only to express, contracts. Sylva v. Bond, 2 Miles (Pa.) 421; Barr v. Duncan, 76 Pa. St. 395. Scire Facias sur Judgment is not an action of assumpsit under the act of 1887, requiring an affidavit of defense. Cowden v. Kennedy, 7 Pa. Co. Ct. Rep. 312. The former law applied to such actions. Act of March 28. 1835, P. L. 89. Infants. The former act was held not to apply to an action against an infant. Reed v. Bush, 5 Binn. (Pa.) 455. The infancy should be set up by affidavit. Walker v. Morgan, 2 W. N. C. (Pa.) 173. See Charlton v. Alle- gheny, I Grant's Cas. (Pa.) 208. Executors and Administrators. The statute does not apply to an action against an executor or administrator on a contract made by decedent. Ken- nedy v. Kennedy, 7 Pa. Co. Ct. Rep. 311; Wiseman v. Insurance Co., 20 W. N. C. (Pa.) 299; Cowden v. Kennedy, 7 Pa. Co. Ct. Rep. 312; Orne v. Ritchie, 4 W. N. C. (Pa.) 477; Malone v. Phila- delphia, 7 Pa. Co. Ct. Rep. 613. And it was so held under the former act. Edwards v. Ewing, 4 Yeates (Pa.) 235; Parker v. Farr, 2 Browne (Pa.) 39; Siebert v. Hoeker, i Miles (Pa.) 263 ; Vandusen v. Graham, i W. N. C. (Pa.) 103; Seymour v. Hubert, 83 Pa. St. 346; Umberger v. Zearing, 8 S. & R. (Pa.) 163. In scire facias on a mechan- ic's lien claim, where the contractor is dead, his administrator (defendant) is not required to make an affidavit of defense. And see Richards v. Reed, i Phila. (Pa.) 220; Com. v. McKin- ney, i Sack. Jur. (Pa.) 107. But where an executor executed a mortgage as executor, an affidavit of defense is required to a scire facias sur mortgage. Palaiset v. Fidelity Co., 16 W. N. C. (Pa.) 146. So also such an affidavit is required to a scire facias on a judgment obtained against an executor. Umberger v. Zearing, 8 S. & R. (Pa.) 163. Where an executor has voluntarily submitted to arbitra- tion, he must file an affidavit of de- fense to an action of debt on the award. Bayard v. Gillasspy, i Miles (Pa.) 256. Heirs. No affidavit of defense is re- quired where heirs are sued on the con- tract of the decedent. Boas v. Bir- mingham, 2 Pears. (Pa.) 334; Wright v. Cheyney, 10 Phila. (Pa.) 469; Hallz>. Wiggins, 15 W. N. C. (Pa.) 112. Nor is it required on scire facias against heirs to show cause why execution should not be levied of their lands. Stadelman v. Pennsylvania Trust Co., 6 W. N. C. (Pa.) 134. 2. In order that plaintiff may compel a defendant to make an affidavit of de- fense in a proper case, he must file a sufficient statement of his claim; for if a sufficient statement is not filed, judg- ment cannot be taken for want of an affidavit of defense. Jiarr v. McGarry, 131 Pa. St. 401. It is error to give judgment on account of the insuffi- ciency of an affidavit of defense, where the case is one in which an affidavit of 349 When Bequired. AFFIDA VI TS OF MERITS. To Prevent Inquests. defendant does not waive his right to a proper statement by filing an affidavit of defense. 1 Judgment by Default. Where a proper statement has been made by plaintiff, and defendant omits to make an affidavit of defense, or the one made is insufficient, the plaintiff is entitled to judg- ment by default. 2 Waiver of Defects. If plaintiff does not take advantage of any de- fect in the affidavit at the first opportunity, he waives objections thereto. 3 defense cannot be required. Bartoe v. Guckert (Pa., 1893), 27 Atl. Rep. 845. Sufficiency of Plaintiff's Statement. To entitle plaintiff to judgment for want of an affidavit of defense, his statement must show a prima-facie liability on the part of defendant. Karthaus Coal, etc., Co. v. Given, i W. N. C. (Pa.) 366; Van Dyke v. Mc- Connell, I W. N. C. (Pa.) 276. And he must file a copy of the contract sued on, or refer to its record. Jordan v. Keller, 5 W. N. C. (Pa.) 341; Laird v. Potts, 6 W. N. C. (Pa.) 56. A state- ment is not sufficient if it alleges nec- essary facts in such a way that it amounts simply to the expression of affiant's opinion that they are facts; they should be specifically stated as facts. Bank v. Fair, 127 Pa. St. 324. Where the items of a claim were stated to be "nearly as follows," held, in- sufficient to require an affidavit of de- fense. Ide v. Booth, 8 Pa. Co. Ct. Rep. 499. Where, in an action on book entries, it is stated that the charges made in the books "were in- tended as personal charges against the defendant," held, defective, and not to require an affidavit of defense. Fritz v. Hathaway, 135 Pa. St. 274. In an action by a depositor against a banking company to recover an al- leged balance of deposit, where the plaintiff's statement sets forth a copy of an entry "to balance " made by the defendant in plaintiff's book, giving the date and amount, held, sufficient to call for an affidavit of defense by de- fendant. Such an entry constitutes a sufficient instrument of writing under the affidavit of defense law. Schoono- ner v. Jones, II Pa. Co. Ct. Rep. 63. It is the duty of a plaintiff to present such a record as entitles him, under the act of May 25, 1887, and the rules of court, to a judgment before he can call on defendant for an affidavit of defense. Medlar v. Wadlinger, 2 Pa. Dist. Rep. 638. To compel defendant to file an affidavit of defense, plaintiff's state- ment must show a prima-facie liability on the part of defendant. Hence, where the plaintiff's statement set out a written instrument in which the re- ceipt of the consideration was ad- mitted, and then averred demand for and the refusal of defendant to pay such consideration, but did not aver any mistake, or that the consideration was unpaid held, not sufficient to re- quire an affidavit of defense. Grist v. Mundell (Pa., 1888), 13 Atl. Rep. 3i9- 1. Filing Affidavit of Defense not a Waiver of Objection to Statement. The defendant, by filing an affidavit of de- fense, does not waive the objection that plaintiff's statement is insufficient to call for such affidavit or to entitle plaintiff to judgment. Ferguson v. Anglo-American Tel. Co., 151 Pa. St. 2ii ; Hutchinson v. Woodwell, 107 Pa. St. 509; MiffHn v. R. Co., 10 Lane. Bar (Pa.) 128; Brown v. Street, 6 W. & S. (Pa.) 222; Fenst v. Fell, 6 W. N. C. (Pa.) 43; Hill v. Gaw, 4 Pa. St. 495. 2. Judgment for Want of Affidavit or Defect in. If no affidavit of defense is filed where one is required, or if the affidavit filed is defective, plaintiff can take judgment as by default. Lan- caster Bank v. McCall, 2 Clark (Pa.) 498; West v. Simmons, 2 Whart. (Pa.) 261; Taylor v. Nyce, 3 W. N. C. (Pa.) 433; Pennock v. Kennedy, 153 Pa. St. 577; Moore v. Phillips, 154 Pa. St. 204. Such a judgment has been held to be final, and not interlocutory. McClung v. Murphy, 2 Miles (Pa.) 177. 3. Cheww. Griffith, i Ashm. (Pa.) 18. So, taking any step in the cause has been held to be a waiver by plaintiff of the right to take judgment for want of an affidavit of defense. O'Neal v. Rupp, 22 Pa. St. 395; Johnston v Bal- lentine, i W. N. C. (Pa.) 626. 35 When Required. AFFIDAVITS OF MERITS. To Prevent Inquests. Admission of Part of Claim. If the defendant admits part of the claim, judgment may be taken for that part. 1 How Sufficiency Tested. The sufficiency of an affidavit of defense should be tested by a motion for judgment, 8 although the affida- vit must allege all the facts necessary to make a legal answer to plaintiff's claim. On such a motion the affidavit is considered true, and if, so considered, a defense in law or equity is stated, the motion should be denied. 3 Admissions Binding. Admissions contained in the statement of claim and affidavit of defense are binding on the parties. 4 1. Judgment for Part of Claim. Where part of plaintiiff's claim is admitted by or not denied in the affidavit of de- fense, the practice is to allow plaintiff to take judgment for that part, and to litigate as to the balance. So also, where the defense set up in the affi- davit is insufficient as to part of plain- tiff's claim, the court has power to and will direct judgment for the part as to which the affidavit is insufficient, and allow plaintiff to proceed for the balance. Drake v. Irvine, 10 Pa. Co. Ct. Rep. 487. The act of May 25, 1887, did not affect the practice of the courts as to entering judgment for part of a claim, and such practice of the lower courts will not be interfered with on appeal. Stedman v. Paterie, 139 Pa. St. no. 2. Necessity for Affidavit How Ques- tion Raised. The proper way to raise the question whether an affidavit of defense is needed in reply to plaintiff's statement under the act of May 25, 1887, is for plaintiff to enter a rule for judgment for want of it; a rule by de- fendant to show cause why he should not be relieved from filing it is not proper. Com. v. Payton, I Pa. Dist. Ct. Rep. 609. The question may properly be raised by a demurrer by defendant to plaintiff's declaration. Fox v. Brin- ton, i Pa. Dist, Ct. Rep. 608. 3. Class v. Kingsley, 142 Pa. St. 636, 28 W. N. C. (Pa.) 321, 22 Pitts. L.J. N. S. 67, 48 Leg. Int. (Pa.) 364. Sufficiency of Affidavit Inferences. In considering the question of the sufficiency of an affidavit of defense, all the material averments thereof must be treated by the court as true. The court should not infer from anything appear- ing therein that defendant will not be able to prove his case. Shoemaker Piano Co. v. Owens, 9 Lane. L. Rev. (Pa.) 74. A motion for judgment for want of a sufficient affidavit of defense is in the nature of a demurrer to the affidavit of defense, and the question raised by it is whether the amendments of fact in the affidavit are sufficient to carry the case to the jury. In consider- ing that question every material aver- ment of fact in the affidavit must be ac- cepted as true, and if any of the aver- ments contain what either in law or in equity amounts to a substantial de- fense to plaintiff's claim, the affidavit must be sustained and judgment on plaintiff's claim refused. Third Re- formed Dutch Church v. Jones, 132 Pa. St. 465, 25 W. N. C. (Pa.) 396, 47 Leg. Int. (Pa.) 131. Where the refusal to give judgment for want of a sufficient affidavit of de- fense is assigned as the ground of plaintiff's appeal, the decision will not be reversed unless plaintiff's right to such judgment as shown by the case presented is very clear ; for, notwith- standing such refusal, plaintiff has still a right to submit his case to a jury, and a fair chance to obtain a verdict if he is entitled to it. Garis v. Fish, 133 Pa. St. 559. When, at the time of a motion for judgment for want of a sufficient af- fidavit of defense, there is anything on the record which for any reason shows that plaintiff is not entitled to it.it is the duty of the court to deny the motion and send the case to the jury. Hence, where a supplemental affidavit which showed a defense was, as plaintiff al- leged, improperly filed, held, plaintiff was not entitled to judgment as long as such affidavit was on file, and should move to strike it off the file before mov- ing for judgment. Wilkinsons. Brice, 3 W. N.-C. (Pa.) 30, i Pa. Adv. Rep. 481. 4. While the affidavits of claim and defense are not ordinarily intended as evidence for the jury, they constitute part of the pleadings, and their prov- .35* When Lequired. AFFIDA VI TS OF MERITS. To Open Judgments. 2. To Open Judgments or Inquests. It is the almost universal practice to require an affidavit of merits in order to open a judg- ment regularly taken by default, or to set aside an inquest. 1 ince is to reduce the contest to the points actually in dispute; and the courts should take notice of the admis- sions in the record, and confine the con- test to the matters in dispute. White- head v. North School Dist., 145 Pa. St. 428; Neely v. Bair, 144 Pa. St. 256; South Bethlehem v. Samper, n Pa. Co. Ct. Rep. 65. Thus, where the rules of court provided that in actions on writ- ten instruments, etc., where a copy thereof is filed with the declaration, plaintiff need not prove its execution unless defendant denies it by an affi- davit filed with his plea, plaintiff can- not be compelled to prove its execution where no affidavit denying it is filed by defendant. Whitehead v. North School Dist., 145 Pa. St. 418, 48 Leg. Int. (Pa.) 537; 22 Pitts. L. J. N. S. 174. 1. Alabama. Mayfield v. Allen, Minor (Ala.) 274. Arkansas. Browning v. Roane, 9 Ark. 354; 50 Am. Dec. 218; Nelson v. Hubbard, 13 Ark. 253. California. Francis v. Cox, 33 Cal. 323; Parratt v. Den., 34 Cal. 79; Bailey v. Taaffe, 29 Cal. 424; Reese v. Ma- honey, 21 Cal. 315; Woodward v. Backus, 20 Cal. 137; People v. Rains, 23 Cal. 129; Nevada Bank v. Dresback, 63 Cal. 324. Colorado. Martin v. Skehin, 2 Colo. 614; Colorado Springs Co. v. Hewitt, 3 Colo. 375; Leaky v. Dunlap, 6 Colo. 552. Florida. Tidwell v. Witherspoon, 18 Fla. 282; Roussz/. Gilbert, 19 Fla. 54. Georgia. Beall v. Marietta, etc., Co., 45 Ga. 28. Illinois. Hitchcock v. Herzer, 90 111. 543; Pith v. Magee, 24 111. 610; Springfield, etc., R. Co. v. Ross, 88 111. 179; Moir v. Hopkins, 21 111. 557; Con- stantine v. Weeks, 83 111. 192; Little v. Arlington, 93 111. 253; Slack v. Casey, 22 111. App. 412; Holmes v. Parker, 125 111. 478; Terry v. Eureka College. 70 111. 236; Treftz v. Stahl, 46 111. App. 462; Dunn v. Keegin, 4 111. 292. Indiana. Stevens v. Helm, 15 Ind. 183; Sturges v. Fay, 16 Ind, 429, 79 Am. Dec. 440; Nutting v. Losance, 27 Ind. 37; Blake v. Stewart, 29 Ind. 318; Yancy v. Teter, 39 Ind. 305; Phelps v. Osgood, 34 Ind. 150; Bristor v. Galvin, 62 Ind. 352; Ratliff v. Baldwin, 29 Ind. 16, 92 Am. Dec. 330. Iowa. Smith v. Watson, 28 Iowa 218; McDonald v. Donaghue, 30 Iowa 568; King v. Stewart, 48 Iowa 334; Dis- trict Tp. v. White, 42 Iowa 608; Palmer v. Rogers, 70 Iowa 381. Kansas. McPherson v. Kingsbaker, 22 Kan. 646; Halght v. Schenck, 6 Kan. 192. M'u,'. . - Loree v. Reeves, 2 Mich. 133- Minnesota. Woods v. Woods, 16 Minn. 81; Hilderbrandt v. Robecke, 20 Minn. 100; Weymouth v. Gregg, 40 Minn. 45; St. Paul, etc., R. Co. v. Blackmar, 44 Minn. 514. Mississippi. Shields v. Taylor, 13 Smed. & M. (Miss.) 127; Porters. John- son, 2 How. (Miss.) 736; Fore v. Fol- som, 4 How. (Miss.) 282; Maury v. Roberts, 5 Cush. (Miss.) 225. Missouri. Campbell v. Garton, 29 Mo. 343; Adams v. Heckman, 43 Mo. 168; Doan v. Holly, 27 Mo. 256; Stout T. Lewis, ii Mo. 438. Montana. Lamb v. Gastoy, etc., Min. Co., I Mont. 57; Donnelly?/. Clark, 6 Mont. 135. Nebraska. Mills v. Miller, 3 Neb. 95; Mulhollan v. Scoggin, 8 Neb. 202; Bernstein v. Brown, 23 Neb. 64. Nevada. State v. Consolidated Vir- ginia, etc., Co., 13 Nev. 194; Ewing v. Jennings, 15 Nev. 379; Jones v. San Francisco Sulphur Co., 14 Nev. 172. New Hampshire. Ela v. Goss, 20 N. H. 52. New Jersey. Millers. Alexander, I N. J. L. 400; Gulick v. Thompson, 4 N. J. L. 292; Bell v. Kelly, 17 N. J. L. 270; Hendrickson v. Herbert, 38 N. J. L. 296. New York. Gage v. Lessler, 19 Alb. L. J. (N. Y.) 400; Home v. Montgom- ery, 5 How. Pr. (N. Y.) 238; Stewart v. McMartin, 2 How. Pr. (N. Y.) 38; Robinson v. Sinclair, I How. Pr. (N.Y.) 106; Alberth v. Peck, i How. Pr. (N.Y.) 230; Bogardus v. Doty, 2 How. Pr. (N. Y.) 75; Tallmadge v. Stockholm, 14 Johns. (N. Y.) 342; Quinn v. Case, 2 Hilt. (N. Y.)467; Clark v. Lyon, 2 Hilt. (N. Y.) 91; Giles v. Caines, 3 Cai. (N. Y.) 107; Allen v. Thompson, i Hall (N. Y.) 54; Hunter v. Lester, 18 How. Pr. (N. Y.) 347; Tryon v. Jennings, 22 How. Pr. (N. Y. C. PI.) 421; Randall v. United Life, etc., Ins. Assoc., 39 N. Y. St. Rep. 155; Kitson v. Blake, 39 35 2 When Kequired. AFFIDA VI TS OF MERITS. To Open Judgments. This is the rule in equity as well as at law. 1 In Equity such an affidavit is required to state the facts of the defense, 2 and the proposed answer should also be served. 3 At Law a general affidavit of merits is usually sufficient, 4 al- N. Y. St. Rep. 45; Duche v. Voisin, 18 Abb. (N.Y.) 358; Bruen v.\ Adams, 3 Cai. (N. Y.) 97; Philips v. Blagge, 3 Johns. (N. Y.) 141; Fink v. Bryden, 3 Johns. (N. Y.) 245; Howe v. Has- brouck, i How. Pr. (N. Y.) 68; Fake v. Edgerton, 6 Duer (N. Y.) 653; Daven- port v. Ferris, 6 Johns. (N. Y.) 131. Ohio. Messick, etc., Co. i>. Roxbury, I Handy (Ohio) 190; Wayne v. Wash- ington, etc., Co., 3 West. L. J. (Ohio) 305; Havard v. Abbey, i West. L. Month. (Ohio) 278. Oregon. Marsh v. Perrin, 10 Oregon 364; Mitchell v. Campbell, 14 Oregon 454- Pennsylvania. Reichenback v, Hum- mell, 6 Pa. Co. Ct. Rep. 661; Barbers. Dans, i Miles (Pa.) 118; Martin v. Hall, i Phila. (Pa.) 233; Emerson v. Knight, i Phila. (Pa.) 121; Nicholson v. Fitz- patrick, 2 Phila. (Pa.) 205; Scranton Supply Co. v. Cooper, 4 Com. Pleas Rep. (Pa.) 103; Kittle v, Compton, 4 Com. Pleas Rep. (Pa.) 117; Brandle v. Jones, 2 Woodward (Pa.) 7; Bright v. McLaughlin, i Pa. Co. Ct. Rep. 296; Keenan v. Dugan, 6 Lancaster Rev. (Pa.) 408. South Carolina. Williamson v. Cum- mings, 2 McCord (S. Car.) 250. Texas. Auston v. Burke, 55 Tex. 331; Goodhue v. Meyers, 58 Tex. 405. Wisconsin. Mowry v. Hill, II Wis. 146; Butler v. Whitehall, 15 Wis. 355; Omro v. Ward, 19 Wis. 232; Babcock v. Perry, 4 Wis. 31; Johnson v. Eldred, 13 Wis. 482; Wicke v. Lake, 21 Wis. 410; Sayles v. Davis, 22 Wis. 225; But- line v. Bouer, 25 Wis. 486; Cleveland v. Hopkins, 55 Wis. 598. United States. Den v. McAllister, 4 Wash. (U. S.) 393; Scott v. Propeller Young America, Newb. Adm. no. England. Neesom v. Whytock, 3 Taunt. 403; Morris v. Hunt, i Chit. Rep. 93, 18 E. C. L. 37; Bonner v. Hemp, i C. & J. 287, 288. 1. Mowry v. Hill, u Wis. 146; Grubb v. Crane, 5 111. 156; Stockton v. Williams, Harr. (Mich.) 241; Thayer v. Swift, Walk. (Mich.) 384; Lansing v. McPherson, 3 Johns. Ch. (N. Y.) 424; Hunt v. Wallis, 6 Paige (N. Y.) 371; Winship v. Jewett, I Barb. Ch. (N. Y.) 173; Goodhue v. Churchman, x i Barb. Ch. (N. Y.) 596; Babcock v. Perry, 4 Wis. 31; Dale v. Bugh, 16 Ind. 233; Powers v. Trenor, 3 Hun (N. Y.) 3; Wells v. Cruger, 5 Paige (N. Y.) 164; Sea Ins. Co. v. Stebbins, 8 Paige (N. Y.) 565; Meach v. Chappell, 8 Paige (N. Y.) 135. 2. Meach v. Chappell, 8 Paige (N. Y.) 135; Sea Ins. Co. v. Stebbins, 8 Paige (N. Y.) 565; Wells v. Cruger, 5 Paige (N. Y.) 164; Hunt v. Wallis, 6 Paige (N. Y.) 371; Thayer v. Swift, Walk. (Mich.) 384; Mowry v. Hill, n Wis. 146; Bab- cock v. Perry, 4 Wis. 31; Lansing v. McPherson, 3 Johns. Ch. (N. Y.) 424; Winship v. Jewett, i Barb. Ch. (N. Y.) 173; Goodhue v. Churchman, i Barb. Ch. (N. Y.) 596; Ferussac v. Thorn, i Barb. (N. Y.)42; Stockton v. Williams, Harr. (Mich.) 241; Hunt v. Lindsay, Walk. (Mich.) 72; Grubb v. Crane. 5 111. 156; Dale v. Bugh, 16 Ind. 233. It is the settled practice in chancery to require that an affidavit of merits shall state what the merits are. Thay- er v. Swift, Walk. (Mich.) 384. By the well-settled practice of chancery a general affidavit of merits is not suf- ficient to open a default, but the af- fiant is required to state what the merits are, so that the court can see that the defense is not imaginary, and that the affiant can be punished for perjury if it is false. Meacb v. Chap- pell, 8 Paige (N. Y.) 135. But see Burch v. Scott, I Bland (Md.) 112. 3. The proposed answer as well as the special affidavit is usually required to be served to open the default. Grubb v. Crane, 5 111. 156; Stocktons/. Williams, Harr. (Mich.) 241; Russell v. Waite, Walk. (Mich.) 31. Answer not a Substitute. But a veri- fied answer will not take the place of an affidavit of merits stating the facts of the defense. Mowry -v. Hill, n Wis. 146. 4. Van Home v. Montgomery, 5 How. Pr. (N. Y. Supreme Ct.) 238; Dix v. Palmer, 5 How. Pr. (N. Y. Supreme Ct.) 233; Ellis -v. Jones, 6 How. Pr. (N. Y. Supreme Ct.) 296; Bower v. Kemp, i C. & J. 287; Lane v. Isaacs, 3 Dowl. Pr. Cas. 652; Tate v. Bodfield, 3 Dowl. Pr. Cas. 218; Page v. South, 7 Dowl. Pr. Cas. 412; Burrows v. Hill- i Encyc. PI. & Pr. 23. 353 When Required. AFFIDA VI TS OF MERITS. To Open Judgments. though the rule is not uniform, and many authorities require the facts constituting the defense to be stated. 1 Verified Answer. In some jurisdictions a verified answer is held to take the place of an affidavit of merits for the purpose of opening a default ; 2 while in others both the proposed answer and an affi- davit of merits must be served. 3 house, 6 Johns. (N. Y.) 132; McKinstry v. Edwards, 2 Johns. Cas. (N. Y.) 113; Coggswell v. Vandenburg, I Cai. (N. Y.) 156; Briggs v. Briggs, 3 Johns. (N. Y.) 258; Francis v. Cox, 33 Cal. 323; Woodward v. Backus, 20 Cal. 137; Howe v. Caldren, 4 Nev. 171; State v. Consolidated Virginia, etc., Min. Co., 13 Nev. 194; Butler v. Mitchell, 17 Wis. 52. 1. When suspicious circumstances exist, a special affidavit of merits, stat- ing the facts of the defense, has been required. Dix v. Palmer, 5 How.. Pr. (N. Y. Supreme Ct.) 233; Ellis v. Jones, 6 How. Pr. (N. Y. Supreme Ct.) 296; Sheldon v. Campbell, 5 Hill (N. Y.) 508; Merchant's Bank v. Mills, 3 E. D. Smith (N. Y.) 210; McGaffigan v. Jen- kins, i Barb. (N. Y.) 31. Where the defendant had admitted the debt and asked time in which to pay it held, that his default should not be opened on a general affidavit, but that he should be compelled to disclose the facts of his defense. Shel- don v. Campbell, 5 Hill (N. Y.) 508. A special affidavit should be required, stating the facts of the defense, to open default where defendant has used improper continuances to gain time. Gregory v. Stout, 6 Hill (N. Y.) 380. And without regard to the circum- stances, it seems to be the rule in many of the states to require a state- ment of the facts of the defense in the affidavit in order to open a default. Miller v. Alexander, I N. J. L. 400; Bell v. Kelly, 17 N. J. L. 270; Gib- boney v. Gibboney, 2 111. App. 322; Holmes v. Parker, 125 111. 428; Rich v. Hathaway, 18 111. 548; Hitchcock v. Heizer, 90 111. 543; Pitts v. Magie, 24 111. 610; Treftz v. Stahl, 46 111. App. 462; Frost v. Dodge, 15 Ind. 139; Goldsberry v. Carter, 28 Ind. 59; To- ledo, etc., R. Co. v. Gates, 32 Ind. 238; Yancy v. Teter, 39 Ind. 503; Phelps v. Osgood, 34 Ind. 297; Lake v. Jones, 49 Ind. 297; Buck v. Havens, 40 Ind. 221; Hays v. State Bank, 21 Ind. 154; Nord v. Marty, 56 Ind. 531; King v. Stewart, 48 Iowa 334; Jaeger v. Evans, 46 Iowa 188; McGrew v. Downs, 67 Iowa 687; McPherson v. Kingsbaker, 22 Kan. 646; Barry v. Johnson, 3 Mo. 372; Green v. Goodloe, 7 Mo. 25; Lamb v. Nelson, 34 Mo. 501; Campbell -v. Garton, 29 Mo. 343; Florez v. Uhrig, 35 Mo. 517; Donnelly v. Clark, 6 Mont. 135; Goodhue v. Meyers, 58 Tex. 405; Houston, etc., R. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 808; Tullis v. Scott, 38 Tex. 537; Scott v. The Young America, Newb. Adm. no. 2. It is sometimes held that a veri- fied answer will take the place of an affidavit of merits for the purpose of opening a default. Kupferle v. Mer- chants' Nat. Bank, 32 Ark. 717; Mc- Pherson v. Kingsbaker, 22 Kan. 646; Haggerty v. Walker, 21 Neb. 596; Omro v. Ward, 19 Wis. 232; Levy v. Goldberg, 40 Wis. 308; Howey v. Clif- ford, 42 Wis. 561 ; Louchime v. Strouse, 49 Wis. 623; Laws Wis. 1861, ch. 211. That a verified answer will not take the place of an affidavit of merits on such motion, see Parrott v. Den, 34 Cal. 79; Martin v. Skehan, 2 Colo. 614; Butler v. Whitehell, 15 Wis. 355; Jones v. Russell, 3 How. Pr. (N. Y. Supreme Ct.) 324. New York. Although 980 of the New York Code allows a verified an- swer to take the place of an affidavit of merits for the purpose of prevent- ing an inquest, it does not seem to have changed the rule in other re- spects. State Bank v. Gill, 23 Hun (N. Y.) 406. 3. Reynolds v. Palen, 13 Civ. Pro. Rep. (N. Y.) 200; Palmer v. Van Orden, 4 Civ. Pro. Rep. (N. Y.) 44; Hale v. Bender, 13 Neb. 66; Spencers. Thistle.. 13 Neb. 201; Fritz v. Grosnicklaus, 20 Neb. 413. Where the affidavit of merits stated the nature of the defense, held, that service of the proposed answer was excused. Palmer v. Van Orden, 4 Civ. Pro. Rep. (N. Y.) 44, 49 N. Y. Super. Ct. 89. Where the proposed answer is frivo- lous or bad the motion has been de- nied. Hunt v. Mails, i Code Rep. 354 When Required. A F FID A VI TS OF MERITS. To Change Venue When Defaults Opened. Where probable merits are shown, defaults are usually opened. 1 Irregular Default. It is only where a judgment by default has been regularly taken that an affidavit of merits is required to open it; if irregular, no merits need be shown. 2 3. To Extend Time to Answer or Demur. An affidavit of merits is sometimes required to obtain an extension of time to answer or demur. 3 4. To Change Venue. On a motion to change the venue of an (N. Y.) 118; Potters. Clark, 6 Abb. Pr. (N. Y.) 74, note. But the answer must be clearly bad in order to defeat the motion. Excise v. Hallister, z Hilt. (N. Y.) 588. 1. Andrews v. Davane, 2 Hayw. (N. Car.) 373. See DEFAULTS. Justice's Judgment New York. 3064 New York Code of Civil Pro- cedure provides that a justice's judg- ment by default may be set aside on appeal if excused and shown that in- justice has been done. Held, that to set aside such a judgment the appel- lant must show that he has a merito- rious defense, and should state what the defense is. Young v. Conklin, 3 Misc. Rep. (N. Y.) 122. Technical Defense. Where only a technical defense is shown, viz., al- leged defects appearing on the face of the complaint, held, no ground for opening the judgment. People v. Rains, 23 Cal. 127. Same effect, Jones v. San Francisco Sulphur Co., 14 Nev. 172; Ewing v. Jennings, 15 Neb. 379; Howard v. Abbey, I West. L. Month. (Ohio) 278. Plaintiff Admitting Partial Defense. Motion to open a default should not be denied because plaintiff concedes a defense as to part of his claim, and consents to exclude that part from his judgment. Francis v. Cox, 33 Cal. 323. 2. Norton v. Atchison, etc., R. Co., 97 Cal. 388; Browning v. Roane, 9 Ark. 354, 50 Am. Dec. 218; Howell v. Denniston, 3 Cai. (N. Y.) 96; Thomas v. Douglass, 2 Johns. Cas. (N. Y.) 226; DePeyster v. Warne, 2 Cai. (N. Y.) 45; Gulick v. Thompson, 4 N. J. L. 292; Rice v. Griffith, 9 Iowa 39; Find- ley v. Johnson, I Overt. (Tenn.) 344. Where the Ohio Code, 538, pro- vided " that a judgment should not be vacated on motion until it was ad- judged there was a good defense," held, that this provision did not apply to a judgment obtained on a warrant of attorney which applied only to another and distinct cause of action, or where the court had obtained no jurisdiction of the person of the defendant. Knox County Bank v. Doty, 9 Ohio St. 505, 75 Am. Dec. 479. So where a default was obtained through misapprehen- sion or mistake occasioned by the plaintiff or his attorney, it was opened without showing merits, although it was regularly obtained. Stewart v. Atkins, 3 Cow. (N. Y.) 67; Olney v. Bacon, 3 Cai. (N. Y.) 132. Merits Although Irregular. Although a judgment has been irregularly entered it will not be opened unless the peti- tioner shows he might have succeeded in the merits, and that injust ce has been done. Ela v. Goss, 20 N. H. 52. 3. Rule 24 of the New York Supremo Court provides that "no order ex- tending a defendant's time to answer or demur shall be granted unless the party applying for such order shall present to the justice or judge to whom the application shall be made an affidavit of merits, or proof that it has been filed, or an affidavit of the attorney or counsel retained to defend the action that, from the statement of the case in the action made to him by the defendant, he verily believes that the defendant has a good and sub- stantial defense upon the merits to the cause of action set forth in the com- plaint or to some part thereof." An order made extending the time to an- swer or demur without an affidavit of merits is irregular and may be disre- garded. Ellis v. Van Ness, 14 How. Pr. (N. Y. Supreme Ct.) 313; Graham v. Pinckney, 7 Robt. (N. Y.) 147; Davenport v. Sniffen, i Barb. (N. Y.) 223. The affidavit or copy must be served. Corning v. Roosevelt (Su- preme Ct.) 10 N. Y. Supp. 93. See also Pingar v. Van Click, 36 Wis. 141; Scammon v. McKey, 21 111. 554; Ball v. Geoch, 78 Wis. 355. 355 When Required. AFFIDA VI TS OF MERITS. On Motions Generally action an affidavit of merits is required by the practice of some jurisdictions. 1 5. On Motions Generally. An affidavit of merits is frequently required to be made by a defendant on making motions, especially if the motion be one which tends to delay the action. 3 Such an affidavit has been required on a motion to stay proceedings on a bail bond ; 3 to set aside proceedings for irregularity; 4 to obtain a stay of proceedings on a commission to examine witnesses; 5 to obtain leave to answer after a demurrer has been overruled as frivolous ; 6 to resist a motion to strike out a plea as false ; 7 to obtain a continuance. 8 But where the complaint has not been 1. Nicoll v. Nicoll, 4 West Coast Rep. (Cal.) 219; Watkins v. Degener, 63 Cal. 500; Buell v. Dodge, 63 Cal. 553; Rathget v. Tiscornia, 66 Cal. 96; Rowland v. Coyne, 55 Cal. i; Johnson v. Nevison, 2 Dowl. Pr. Cas. 260; Chemung Canal Bank v. Chemung County, i How. Pr. (N. Y.) 162; Swartwout z>. Hooge, 16 Johns. (N. Y.) 3; Mills v. Adsit, 2 How. Pr. (N. Y.) 83; Brittain v. Peabody, 4 Hill (N. Y.) 61; Brownell v. Marsh, 22 Wend. (N. Y.) 636; Johnson v. Rogers, 3 Cow. (N. Y.) 14; Cromwell v. Van Rensse- laer, 3 Cow. (N. Y.) 346; Onondaga County Bank v. Shepherd, 19 Wend. (N. Y.) 10, i Green's New Pr. (Mich.) 516; Wharton v. Barry, I How. Pr. (N. Y.) 62; Anonymous, i Hill (N. Y.) 668; Jordan v. Garrison, 6 How. Pr. (N. Y. Supreme Ct.) 6; Bleecker v. Storms, 2 How. Pr. (N. Y.) 161; State Bank v. Gill, 23 Hun (N. Y.) 406; Carpenter z/. Continental Ins. Co., 31 Hun (N. Y.) 78; Noys Mfg. Co. v. Whitmore, 23 N. Y. Wkly. Dig. 424; Chapin v. Overin, 55 N. Y. St. Rep. 130. Contra, Sherman v. Gregory, 42 How. Pr. (N. Y. Supreme Ct.) 481. Rule 48 of the New York Supreme Court provides that, in addition to what has usually been stated in affida- vits on motions to change the place of trial, either party may state the nature of the controversy, and show how his witnesses are material, and where the cause of action or defense arose. 396 of the California Code of Civil Procedure provides that on motions to change the venue the defendant must file an affidavit of merits at the time he appears and answers or de- murs. Under this provision it has been held that the affidavit of merits should accompany the answer or de- murrer, and that one filed before is inconsequential and would not be sufficient on such motion. Nicoll v. Nicoll, 4 West Coast Rep. (Cal.) 219. 2. Bourne v. Walker, 2 C. & M. 338;. Hilton v. Jackson, i Chit. Rep. 677, 18 E. C.L. 201; 3 Chitty Genl. Pr. 543. Rule 23 of New York Supreme Court provides that, when an affidavit of merits has once been served and filed, no other shall be necessary, but that on making a motion such filing and serving shall be shown by affidavit. Prior to the making of such a rule it washeld that anaffidavit of merits made for the purpose of one motion could not be used on another motion. Robin- son v. Sinclair, i How. Pr. (N. Y.) 106; Cutler v. Biggs, 2 Hill (N. Y.) 409; Popham T/. Baker, i How. Pr. (N. Y.> 166. But the court would not presume without proof that an attempt was be- ing made to use the same affidavit twice. Mygatt v. Garrison, 18 Abb. Pr. (N. Y.) 292, note. A Defendant who makes a Motion be- fore Answering is still required to make an affidavit of merits. Bingham v. Bingham, i Civ. Pro. Rep. (N. Y.} 166. 3. Bourne v. Walker, 2 C. & M. 138; Hilton v. Jackson, i Chit. Rep. 677, 18 E. C. L. 201; Tidd Pr. , vol. i, p. 302. 4. Chitty Genl. Pr. ; Tate v. Bod- field, 3 Dowl. Pr. Cas. 218. 5. Meech v. Calkins, 4 Hill (N. Y.) 534; Seymour v. Strong, 19 Wend. (N. Y.)g8; Warner v. Harvey, 9 Wend. (N. Y.) 444- 6. Appleby v. Elkins, 2 Sandf. (N. Y.) 673, 2 Code Rep. (N. Y.) 80; Har- low v. Hamilton, 6 How. Pr. (N. Y. Super. Ct.) 475. 7. On such a motion an affidavit of merits is required, but a general affi- davit is sufficient where there is no intricacy in the plea interposed. Bow- en v. Bissell, 6 Wend. (N. Y.) 511. 8. On a Motion for a Continuance a 356 At What Time Made. AFFIDA VI TS OF MERITS. At What Time Made. filed or served and the defendant has not had a chance to examine into the nature of the cause of action, it has been held not neces- sary on any motion relating to the complaint. 1 V. AT WHAT TIME MADE. An affidavit of merits is not required to be made until after the plaintiff has filed or served his declara- tion or complaint. 3 One made before that time is premature and of no effect. 3 It is usually required to be made on or before the time of joining issue, 4 or before trial, 5 but should be made before if defendant takes proceedings before joinder of issue. 6 One Affidavit o f merits is usually sufficient ; r and if a second one is general affidavit of merits made by the defendant, and swearing to the advice of counsel as to a meritorious defense, was held a sufficient affidavit of merits to support such motion. Sutton v. Wegner, 72 Wis. 294; Engs v. Overing, 2 Code Rep. (N. Y.) 79. 1. Engs v. Overing, 2 Code Rep. . Bertolet (Pa., 1888), 12 Atl. Rep. 255; McBrierw. Marshall, 126 Pa. St. 390. Facts, and not the evidence or manner in which they are to be proved, are what is required to be stated in the affidavit. Bronson v. Sil- verman,77 Pa. St. 94; Kauffman v. Min- ing Co., 105 Pa. St. 541. The affidavit will be reasonably construed in favor of the defendant. Twitchell v. McMur- trie, 77 Pa. St. 383. 3. Harman v. Ramsey, 5 W. N. C. (Pa.) 188; Black v. Halstead, 39 Pa. St. 64; Ball v. Monagan, I W. N. C. (Pa.) 188; Salter v. Askin, i W. N. C. (Pa.) 388; Brown v. Street, 6 W. &. S. (Pa.) 222; Moore v. Sumnerset, 6 W. N. C. (Pa.) 263; Thompson v. Clark, 56 Pa. St. 33; Kidd v. Koch, 2 Pa. Co. Ct. Rep. 285; Black v. Garrett, 2 Le- gal Record Rep. (Pa.) 251; Phillips v, Dryfoos, 3 Kulp (Pa.) 525; Winson v. Farmers', etc., Bank, 81 Pa. St. 304; Newbold v. Pennock, 154 Pa. St. 598. Where facts are alleged on informa- i Encyc. PI. & Pr. 24. 3 6 9 sntsnts of. AFFIDAVITS OF MERITS. In General. Written Instruments. If the defense consists of or embraces a writ- ten contract or record, a copy thereof should be set out in the affidavit. 1 Partial Defense Supplemental Affidavit. A partial defense is allowed, 2 and defendant is usually allowed to file a supplemental affidavit if the original is considered defective. 3 tion, a belief in their truth should be alleged. Cook z/. Com. (Pa., 1887), n Atl. Rep. 574; Coke v. Stidfale, i Walk. (Pa.) 95. Contra, Foster v. Kline, I Woodward (Pa.) 457. When facts are averred on informa- tion and belief, the grounds of belief should be stated. Wolverton v. Smith, 4 W. N. C. (Pa.) 442; Gowen v. Mc- Pherson, 10 Phila. (Pa.) 358. Contra Where facts are alleged on informa- tion and belief, it is sufficient to allege an expectation of ability to prove them. Lewis v. Broadbent, 21 W. N. C. (Pa.) 31. Where the facts are not within the knowledge of defendant, an averment "that defendant is informed and be- lieves an allegation to be a fact, and expects to be able to prove it," is suf- ficient. Bank v. Broadhead, 2 Kulp (Pa.) 285; Lewis v. Broadbent, 21 W. N. C. (Pa.) 31; Reznor v. Supplee, 81 Pa. St. 180; Moeck v. Littell, 82 Pa. St. 354; Thompson v. Clark, 56 Pa. St. 33; Newbold v. Pennock, 154 Pa. St. 591. The proper form of such an aver- ment is " that he is informed and be- lief and expects to be able to prove them." Where it is averred " that he has abundant reason to believe them," it is not sufficient, and the affidavit is bad. Newbold v. Pennock, 154 Pa. St. 598. But where facts are positively averred, no allegation of defendant's ability to prove them is necessary, es- pecially where the defendant is a com- petent witness for himself. Eyre v. Yohe, 67 Pa. St. 477. 1. Richards v. Risler, 3 W. N. C. (Pa.) 485; Birkey v. Whitaker, 4 W. N. C. (Pa.) 137; Potts v. Erst, 4 W. N. C. (Pa.) 542- Where the defense set forth in an affidavit of defense is based on a writ- ten agreement, such agreement should be set forth in full therein. Hence, where the defendant, being sued in assumpsit, set forth in his affidavit of defense that by a written agreement duly made (the substance of which was alleged) a third party had been substituted for defendant as plaintiff's debtor, and plaintiff had consented thereto, held defective in not setting forth fully the alleged contract, and giving no reason why it was not set forth. Lucas Coal Co. v. Hunt (Pa., 1887), 8 Atl. Rep. 860. Where an affi- davit of defense does not deny the contract alleged in plaintiff's state- ment, but sets up a different and sub- sequent contract between the parties, if such contract is in writing it should be annexed to the affidavit of de- fense, and if not in writing its terms should be stated with particularity, so that the court can determine whether defendant's construction of it is war- ranted or not. If this is not done, and plaintiff's statement presents a prima- facie case, the plaintiff is entitled to a summary judgment. Willard v. Reed, 132 Pa. St. 58, 25 W. N. C. (Pa.) 268, 48 Leg. Int. (Pa.) 132, 20 Pitts. L. J. N. S. 368. Referring to Paper Without Annexing Copy. It is a fatal defect in an affi- davit of defense to refer therein to a material paper which is accessible, without annexing a copy thereof, so that the court may judge of its terms and sufficiency. Erie v. Butler, 120 Pa. St. 374. And see Pittsburg v. Mac- Connell, 130 Pa. St. 463. 2. If the affidavit of defense pre- sents only a partial defense, it should be so precise that plaintiff can take judgment for the amount admitted to be due. Gould v. Bush, 13 W. N. C. (Pa.) 29. An affidavit of defense stating generally " that plaintiff's claim is in excess of the amount agreed upon," is too vague; it should state the precise amount admitted to be due. Griel v. Buckius, 114 Pa. St. 187. 3. If the court deems the defense good, but defectively stated, or so generally stated that it cannot be de- termined whether a defense exists, it is usual to allow a supplemental af- fidavit of defense to be filed. Callan v. Lukens; 7 W. N. C. (Pa.) 28. Under a former statute it was held 37 Contents of. AFFIDA VI TS OF MERITS. By Agent or Clerk. 2. By Codefendant. An affidavit of merits made by a defendant has been held sufficient for his codefendants. 1 But in such case it should appear that the defense of all is the same ; 8 but this has not always been required. 3 3. By Agent, Attorney, or Clerk. When an agent or attorney makes an affidavit of merits, he should swear to his belief of a defense on the merits, 4 and to his knowledge of the defense and that the court could not disregard a supplemental affidavit, although filed after a rule for judgment. West v. Simmons, 2 Whart. (Pa.) 26. If a sup- plemental affidavit is ordered by the court, and none is filed, judgment does not follow as of course for plaintiff, but the case must be again called up, and the court will re-examine the original affidavit, and no inference should be drawn against defendant from his failure to file a supplemental affidavit. Hill v. Gaw, 4 Pa. St. 495. In one case it was said, " it seems as though the legislature intended the propriety of entering judgment to be tested not so much by plaintiff's claim as by the defendant's affidavit. Opin- ion of Sargeant, J., in Dewey v. Du- puy, 2 W. & S. (Pa.) 556. Judgment for want of a proper affidavit of de- fense is final, not interlocutory. Mc- Clung v. Murphy, 2 Miles (Pa.) 177. As Evidence. An affidavit of de- fense may be read on the trial of an action as an admission of the facts stated in it, but if so used the whole of it must be taken together. Bowen v. DeLattre, 6 Whart. (Pa.) 430. 1. Ontario Bank v. Baxter, 6 Cow. (N. Y.) 395; Clark v. Parker, 19 Wend. (N. Y.) 125; Woodward v. Backus, 20 Cal. 137; Rowlands. Coyne, 55 Cal. i; Watkins v. Degener, 63 Cal. 500. 2. Where several separate actions were brought against the maker and endorsers of a note, an affidavit of merits by the maker in all the actions was held sufficient, although he was not a nominal defendant in all the cases, on the ground that he was a party to the instrument, asserted fa- miliarity with all the facts, and that the defense was the same in all the actions. Ontario Bank v. Baxter, 6 Cow. (N. Y.) 395. But where several parties to a note were sued in one action, an affidavit of merits by one defendant was held not sufficient for the others in the absence of a statement that the defense of all the defendants was the same. Clark v. Parker, 19 Wend. (N. Y.) 125. 3. In California this does not seem to be required. Woodward v. Backus, 20 Cal. 137; Rowland v. Coyne, 55 Cal. i; Watkins v. Degener, 63 Cal. 500. On a motion to open a default the affidavit of one of two defendants was " that he had fully and fairly stated the case to his counsel, and that he is advised by such counsel, after such statement made as aforesaid, and verily believes that he and said defendant Harris have a good, full, and perfect defense to said action on the merits." Held sufficient. Woodward v. Backus, 20 Cal. 137. Sheriff and Sureties. In an action against a sheriff and his sureties, an affidavit by the sheriff, " that he had fully and fairly stated the facts of the case to his counsel (naming them), and after such statement they informed him that he had a good and valid de- fense upon the merits to said action, and to all of it, all of which he verily believed to be true," was held to be a sufficient affidavit of merits for all the defendants on a motion to change the venue. Rowland v. Coyne, 55 Cal. 4. Partners. An affidavit by one of de- fendants sued as partners, "that he had fully and fairly stated the case in the action to his attorney and counsel, and that, after such statement, was ad- vised by said counsel and verily be- lieved that the defendants and each of them had a good and substantial de- fense to the action upon the merits," held sufficient for the defendants on a motion to change the venue. Watkins v. Degener, 63 Cal. 500. 4. Worthington v. Price, 5 Tyr. 1029; Mason v. Bidleman, I How. Pr. (N.Y.) 62; Johnson v. Lynch, 15 How. Pr. (N. Y. Super. Ct.) 199; Schofield v. Huggins, 3 Dowl. Pr. Cas. 427. When the affidavit is made by an at- torney, he should swear positively to his belief of a defense upon the merits, not that he is instructed and advised, 371 Contents of. AFFIDA VI TS OF MERITS. By Agent or Clerk. from whom he derived it. 1 It is no objection that such knowl- edge has been derived from his client. 8 When made by a man- aging clerk, he should swear that he has the management of the case in which it is made. 3 as a client might. Worthington v. Price, 5 Tyr. 1029, 2 C. M. & R. 315. An affidavit of an agent of a country attorney "that he was informed and verily believed it to be true that the defendant had a good defense to the action upon the merits," was held suf- ficient. Johnson v. Popplewell, 2 Tyr. 718. But an affidavit by an attorney, " that from the examination of defend- ant's case, so far as he had made such examination, he verily believed that it was better than the plaintiff's," was he'd insufficient, as not showing a meritorious defense. Bailey v. Taaffe, 29 Cal. 422. An affidavit by an attorney, "that from representations made to him by the defendant, and from the papers which he had examined, he verily be- lieved the defendant had a legal de- fense," was held sufficient. Philips v. Blagge, 3 Johns. (N. Y.) 141. 1. Johnson v. Lynch, 15 How. Pr. (N. Y. Super. Ct.) 199; Philips v. Blagge, 3 Johns. (N. Y.) 141; Briggs v. Briggs, 3 Johns. (N. Y.) 258; Hitch- cock v. Herzer, 90 111. 543. An affi- davit by an attorney, " that he was in- formed and verily believed defendant had a substantial defense on the merits," held insufficient. Briggs v. Briggs, 3 Johns. (N. Y.) 258. An affidavit by an attorney upon mere information and belief, but not stating the facts, held insufficient. Hitchcock v. Herzer, 90 111. 543. An affidavit by an agent of a country attorney, "that from instructions re- ceived by deponent from the attorney for defendant, for whom deponent is agent in this cause, and which instruc- tions deponent believes to be true, de- ponent verily believes that said de- fendant hath a good defense to this action on the merits," held sufficient. Schofield v. Huggins, 3 Dowl. Pr. Cas. 427. Attorney in Fact. An agent or attor- ney in fact should swear to advice of counsel. Johnson v. Lynch, 15 How. Pr. (N. Y. Super. Ct.) 199. In Admiralty. Although a defendant should, in general, make an affidavit of merits, this rule is not inflexible in admiralty, and the affidavit of the proctor is sufficient on incidental mo- tions, where the facts cannot be sup- posed to rest particularly in the knowl- edge of the defendant. Brig Harriet, Olc. Adm. 222. To open default in ad- miralty a meritorious defense should be shown; an affidavit of a proctor, "that he believes a good defense ex- ists," is not sufficient; the facts of de- fense should be stated. Scott v. The Young America, Newb. Adm. no. 2. Philips v. Blagge, 3 Johns. (N.Y.) 141; Johnson v. Lynch, 15 How. Pr. (N. Y. Super. Ct.) 199. Contra, Crine v. Wallace, I W. N. C. (Pa.) 292. Affidavit Not Showing Whole Case Stated. An affidavit by an attorney, "that, from the examination of the testimony given before the justice and the statement of facts made to him by defendant, he verily believed that said defendant had a valid defense to said action upon the merits, held not suf- ficient; that it did not show that the whole case had been stated to the at- torney, or that the statement was true, and did not show merits. Pinger v. Vanclick, 36 Wis. 145. Affidavit "from Client's Statement." An affidavit by an attorney, " that from his client's statement of the case to him, he believes that his client has a good and substantial defense upon the merits," held insufficient. Stilson v. Rankin, 40 Wis. 527. 3. Clerk's Affidavit. Doe v. McDon- nell, 8 Dowl. Pr. Cas. 501, 4 Jur. 578. The managing clerk should have had the entire management of the case, and shouH swear that he is fully ac- quainted with the facts relating to the action. Morris v. Hunt, i Chit. Rep. 97, 18 E. C. L. 37. An affidavit by an attorney's clerk, "that there was a good and substantial defense," held in- sufficient; it only tended to show that there was a defense, and was no evi- dence of merits. Russell v. Stiles, 3 Cai. (N. Y.) 93. An affidavit of an attorney's clerk, "that defendant had been advised by counsel that he had a good defense to the action on the merits, which the de- ponent verily believed to be true," held insufficient, on the grounds that it did not allege any statement of the case to 372 Contents of. AFFIDA FITS OF MERITS. Change of Venue. 4. To Obtain Change of Venue. On a motion to change the venue, defendant must swear to a meritorious defense, as he is advised by his counsel j 1 also that he has disclosed to his counsel the facts he expects to prove by each of his witnesses ;* that each and every of such witnesses is material to his defense, as he is advised by counsel ; 3 and that without the testimony of each and every witness he cannot safely proceed to trial, as he is advised by his counsel. 4 This applies to a plaintiff opposing such a to prove by each and every of his wit- nesses," was held sufficient. " Stated " was held equivalent to "disclosed" in such connection. Anonymous, i Hill (N. Y.) 668. 3. Johnson v. Rogers, 3 Cow. (N. Y.) 14; Noys Mfg. Co. v. Whitmore, 23 N. Y. Wkly. Dig. 424; Lansing v. Mickles, i How. Pr. (N. Y.) 248; Car- penter v. Continental Ins. Co., 31 Hun (N. Y.) 78. Materiality of Witnesses. The ad- vice of counsel as to the materiality of the witnesses must be clearly stated'. Johnson v. Rogers, 3 Cow. (N. Y.) 14; Carpenter v. Continental Ins. Co., 31 Hun (N. Y.) 78. Advice of Counsel After Statement. It should appear that the advice was given after the statement to counsel. Lansing v. Mickles, i How. Pr. (N. Y.) 248. Witnesses "for Defendant." An affi- davit stating " that each and every witness is a material witness for de- fendant," instead of " for his defense," was held sufficient, the words "for defendant " being held equivalent to " for his defense." Anonymous, i Hill (N. Y.)668. 4. Satterlee v. Groot, 6 Cow. (N. Y.) 33; Onondaga County Bank v. Shep- herd, 19 Wend. (N. Y.) 10; Brittan v. Peabody, 4 Hill (N. Y.) 61; Porter v. Munn 4, Hill (N. Y.) 540; Carpenter v. Continental Ins. Co., 31 Hun(N. Y.) 78. The affidavit should allege " that each and every of the witnesses is ma- terial and necessary, and that without the testimony of each and every wit- ness defendant cannot safely proceed to trial, as he is advised by his coun- sel, etc." Carpenter v. Continental Ins. Co., 31 Hun (N. Y.) 78. A proper form of affidavit should al- lege " that defendant has stated to his counsel the facts which he expects to prove by his witnesses, and that his counsel has advised him that his wit- nesses are necessary and material, and that without the testimony of each and counsel, or who the counsel was, or that the clerk had the management of the case, and did not even allege the belief of the clerk as to merits. Nash v. Swinburn, 4 Scott N. R. 326, 3 M. & G. 630. An affidavit by a clerk having the management of the case, "that he was apprised and believed that the defend- ant had good grounds of defense upon the merits," held insufficient; it should have been, a good defense to this ac- tion on the merits, as he is informed and verily believes. Bromley v. Gerish, 7 Scott N. R. 516, 6 M. & G. 750. 1. Swartwout v. Hooge, 16 Johns. (N. Y.) 3; Brownell v. Marsh, 22 Wend. (N. Y.) 636; Brittan v. Peabody, 4 Hill (N. Y.) 61; Mills v. Adsit, 2 How. Pr. (N. Y.) 83; California Code of Civ. Proc., 396; People v. Larue, 66 Cal. 236; and that he believes his defense to be true. Wharton v. Barry, i How. Pr. (N. Y.) 62. 2. Constantine v. Dunham, 9 Wend. (N. Y.)43i; Young v. Arndt, i How. Pr. (N. Y.) 227; Harris v. Clark, 2 How. Pr. (N. Y.)82; Dimon v. Dimon, 2 How. Pr. (N. Y.) 91. Where the affidavit failed to allege any statement of the facts expected to be proved by the witnesses, or any advice of coun- sel, or any reason for the belief of af- fiant that the witnesses would testify as stated, held entirely defective, and judgment granting a change of venue reversed on that ground. Chapin v. Overin, 55 N. Y. St. Rep. 139. The affidavit should allege that defendant has fully and fairly stated the case to his counsel, and has disclosed to him the facts which he expects to prove by each and every of his witnesses. Onondaga County Bank v. Shepherd 19 Wend. (N. Y.) 10. The words " fully and fairly" apply to the case, not to the disclosure of facts which the witnesses will swear to; and an affi- davit, " that defendant had stated to his counsel the facts which he expects 373 Contents of. AFFIDA VI TS OF MERITS. Title, Jurat, etc. motion. 1 5. Title, Jurat, etc. An affidavit of merits ought to be properly entitled in the action, and when not so entitled it has been held void.' 4 Proper venue is essential to it ; 3 also a proper See also AFFIDAVITS, ante, p. 311. jurat.- every one of them he cannot safely proceed to the trial of the action." Chapin v. Overin, 55 N. Y. St. Rep. 130; State Bank v. Gill, 23 Hun (N.Y.) 406. The Term "Each and Every" may be omitted where there is only one wit- ness, but not where there is more than one. Brown v. Peck, 10 Wend. (N. Y.) 569. What Counsel. It should appear that the counsel whose advice is sworn to is the counsel of defendant in the action in which the advice is alleged. State Bank v. Gill, 23 Hun (N. Y.) 406. Where Defendant is Himself a Coun- sellor, the advice of counsel need not be alleged. Cromwell v. Van Rens- selaer, 3 Cow. (N. Y.) 346; Ackerman v. Delude, 29 Hun (N. Y.) 137. 1. When a Plaintiff Opposes a Motion to change the venue, he must make a similar affidavit, although the term "affidavit of merits " does not prop- erly apply to a plaintiff. ' Onondaga County Bank v. Shepherd, 19 Wend. (N. Y.) no. California. 396 of the California Code of Civil Procedure requires an affidavit of merits to be filed with the answer or demurrer as a condition of a motion by defendant to change the venue. Buell z>. Dodge, 63 Cal. 553; Watkins v. Degener, 63 Cal. 500. Such affidavit should be a proper affidavit of merits, and where the affidavit stated "that affiant had fully and fairly stated his case and the facts constituting his defense to his coun- sel, etc.," it was held insufficient, as showing only a partial statement of the case, viz., defendant's part of it, and failing to show merits. People v. Larue, 66 Cal. 236. But no allegations as to the statements of facts to be proved by the witnesses, or as to the materiality of the witnesses, is re- quired, a general affidavit of merits being sufficient. Rowland v. Coyne, 55 Cal. i; Degener v. Watkins, 63 Cal. 500; Buell v. Dodge, 63 Cal. 553. 2. Baxter v. Seaman, i How. Pr. (N. Y)SI; Higham v. Hayes, 2 How. Pr. (N.Y.) 27. Improper Title. Where the title is improper, the affidavit is of no effect; hence where the title of the action was Sandland v. Adams, and an affidavit of merits was served, entitled Adams ads. Sunderland, held, plaintiff was regular in taking an inquest, as no affidavit of merits in that action had been served. Sandland v. Adams, 2 How. Pr. (N. Y.) 98. It should be entitled in the proper court, for an affidavit made in one court cannot properly be used in an- other court. Clickman v. Clickman, i N. Y. 611. But where an affidavit of merits was entitled only " State of Nevada, Storey County," but the affidavit referred in- telligently to the action in which it was used, the defect in the title was held immaterial. State v. Consoli- dated, etc., Min. Co., 13 Nev. 202. So where an affidavit of merits was not entitled of the court or term, but was entitled in the cause, and regu- larly filed, so that it could readily be seen to what cause it applied, it was held sufficient. Wilborn v. Blackstone, 41 111. 264. Caption. In Illinois it has been held not indispensable that it should have a caption, or be entitled in the cause. Harris v. Lester, 80 111. 307; McCor- mick v. Wells, 83 111. 239; Hays v. Loomis, 84 111. 18; Beardsley v. Gos- ling, 86 111. 58. An affidavit of merits entitled C. D. ads. A. B. , in an action where A. B. is plaintiff and C. D. defendant, is entitled in the cause, especially where written on the same paper as the plea, which is properly entitled. Bowen v. Wilson, etc., Sewing Mach. Co., 86 111. ii. As to title of affidavits gener- ally, see AFFIDAVITS, ante, p. 311. 3. If the Venue is Omitted, the affida- vit is a nullity, although sworn to be- fore the officer named in it. Cook v. Staats, 18 Barb. (N. Y.) 407. See AFFIDAVITS, ante, p. 313. 4. A Proper Jurat is essential. And where the affidavit is made by an illit- erate person, the jurat should state that the affidavit was read over to him, and that he appeared to under- 374 Service and Filing. AFFIDA VI TS OF MERITS. Controverting. 6. Amendments. Where there is a good defense, it is usual to allow defendant to amend any technical defects in an affidavit of merits, 1 unless there has been great delay, or the circumstances are suspicious.* VIII. SEEVICE AND FILING. An affidavit of merits should be served or filed within the time required by the rules and statutes. 3 To prevent an inquest it should be served and filed before the first day of the circuit, 4 otherwise defendant is compelled to show service to the knowledge of plaintiff's attorney before the inquest is taken. 5 IX. CONTROVERTING THE AFFIDAVIT. Where a proper affidavit of merits has been made, it is the usual rule that the allegations therein relating to merits cannot be controverted, but 'must be considered as true for the purpose for which the affidavit is used. 6 stand it. Haynes v. Powell, 3 Dowl. Pr. Cas. 599. See also AFFIDAVITS, ante, p. 316. Foreign Language. But where the affidavit purports to be signed by a defendant, it is no valid objection to it that it is signed in a foreign char- acter, and that there is no statement in the jurat to show the defendant to be a foreigner and that it is his sig- nature. Nathan v. Cohen, 3 Dowl. Pr. Cas. 373. 1. Gary v. Livermore, 2 How. Pr. (N. Y.) 170; Ellis v. Jones, 6 How. Pr. (N. Y. Supreme Ct.) 298; Tomkins v. Acer, 10 How. Pr. (N. Y. Supreme Ct.) 310; Brown v. St. John, 19 Wend. (N. Y.) 619. If the court deem the defense good, but defectively stated, or stated so generally that it cannot be determined whether a defense ex- ists, it is usual to allow defendant to file a supplemental affidavit of de- fense. Callan v. Lukens, 7 W. N. C. (Pa.) 28. 2. Rickards z/. Swetzer, 3 How. Pr. (N. Y. Supreme Ct.) 414; Johnson v. Lynch, 15 How. Pr. (N. Y. Super. Ct.) 203. 3. In Illinois it should be filed with the plea. Mestling v. Hughes, 89 111. 389; Hurd Rev. Sts. 1891, 1047, 37. But an extension of plaintiff's time to file his claim extends defendant's time to file the affidavit. Healy v. Charnley, 79 HI- 592. In Pennsylvania it should be filed on the return day of the writ, or fif- teen days after the service of plain- tiff's statement. Act of May 25, 1887, P. L. 271. Under the former statute it was held that it might be filed even on a motion for judgment. West v. Simmons, 2 Whart. (Pa.) 261; Gillespie v. Smith, 13 Pa. St. 65. It may be served anywhere within the state. Cochran v. Pyle.io Pa. Co. Ct.Rep. 198. In New York it should be filed with the clerk of the circuit. 3 Wait's Pr. 50. And a copy (with notice of filing the original) should be served on plaintiff's attorney. Cannon v. Titus, 5 Johns. (N. Y.) 355; Bakers. Ashley, 15 Johns. (N. Y.) 536. Filing Affidavit after Denial of Motion. The filing of an affidavit of merits after the denial of a motion to set aside a default does not cure the de- fect of the want of it in the original papers. Thompson v. Savage, 43 Iowa 398. 4. Baker v. Ashley, 15 Johns. (N.Y.) 536; Brainard v. Hanford, 6 Hill (N.Y.) 368; Rule 99, Michigan Supreme Court. Filing will not take the place of ser- vice; it must be both filed and served. Baker v. Ashley, 15 Johns. (N. Y.) 536. 5. Brainard v. Hanford, 6 Hill (N. Y.) 368; Anonymous, 6 Abb. Pr. (N. Y.) 512; Smith v. Aylesworth, 24 How. Pr. (N. Y. Supreme Ct.) 37. Service by leaving at the office of plaintiff's attorney when the office was vacant, and the inquest was taken before the attorney's return, held not a sufficient service. Brain- ard v. Hanford, 6 Hill (N. Y.) 368. But service on a clerk of plaintiff's attorney in time for the clerk to have notified the attorney before the in- quest, was held a sufficient service. Smith v. Aylesworth, 24 How. Pr. (N. Y. Supreme Ct.) 33. 6. Heane v. Batterby, 3 Dowl. Pr. Cas. 213; Blewitt v. Gordon, I Dowl. N. S. 815, 6Jur. 825; Philips f. Blagge, 375 Controverting. AFFIDAVITS OF MERITS. Controverting. The facts involving merits alleged in such an affidavit cannot be contradicted, even by matter of record. 1 3 Johns. (N. Y.) 141; Hanford v. Mc- Nair, 2 Wend. (N. Y.) 286; Roosevelt v. Kemper, 2 Cai. (N. Y.) 30; Fran- cis v. Cox, 33 Cal. 325; Gracier v. Wier, 45 Cal. 54; Reclamation Dist. v. Coghill, 56 Cal. 607; Douglass v. Todd, 96 Cal. 655; Mendall v. Kim- ball, 85 111. 582; Thelin v. Thelin, 8 111. App. 421; Kalkaska Mfg. Co. v. Thomas, 17 111. App. 235; Serafield v. Sheeler, 18 111. App. 507; Bristor v. Galvin, 62 Ind. 352; Buck v. Ha- vens, 40 Ind. 221; Lake v. Innes, 49 Ind. 297; Beatty v. O'Connor, 106 Ind. 81; Hill v. Crump, 24 Ind. 291; Alle- gheny v. McCaffrey, 131 Pa. St. 142. 1. Feust v. Fell, 6 W. N. C. (Pa.) 43- The Court Cannot Take Testimony as to the truth of the facts of de- fense, but must determine the ques- tion on the affidavit of the defendant. Worth v. Wetmore (Iowa, 1893), 54 N. W. Rep. 56. In this case the court said: " In this case the court proceeded to take testimony as to the merits of the defense. This it had no right to do, under an application to set aside a default by motion. We have hereto- fore held that, if the affidavit of merits shows a good defense, there can be no further inquiry as to the truth of the defense. Joerns v. La Nicca, 75 Iowa, 709. In other words, when the appli- cation is by motion, and the applicant shows a reasonable excuse for having made default, and also shows by affi- davit that he has a meritorious defense to the plaintiff's claim, or some part of it, and presents his answer, the court must pass on the question of setting aside the default on the showing thus made. It cannot take testimony to establish the truth of the facts alleged in the affidavit of merits. To take testimony as to the matters set out in the affidavit, as was done in this case, is in effect trying the defense before the court has determined, by setting aside the default, that the defendant shall be heard to make a defense." But Counter-Affidavits controverting the merits were considered by the court in Pitts v. Magie, 24 111. 610; Whiteside v. Logan, 7 Mont. 373; Houston, etc., R. Co. v. Burke, 55 Tex. 336, 40 Am. Rep. 808; and in the two cases last cited the merits were apparently weighed by the court on the conflicting affidavits. Where, on a Motion to Open a Default, defendant presented an affidavit of mer- its and an excuse for the default, and plaintiff opposed the motion by an affi- davit that defendant had admitted the claim alleged in the complaint, held, that the affidavit of defendant was overbalanced by that of plain- tiff, and that the motion was properly denied. Henry Prouse Cooper Co. v. Findlay, 53 N. Y. Super. Ct. 524. See also Johnson v. Lynch, 15 How. Pr. (N. Y.) 191. 376 AFFIRMATION. BY WARD B, 3oE. I. DEFINITION, 377. n. HISTOEY ENGLISH STATUTE LAW, 377. III. AMERICAN STATUTE LAW, 378. IV. FORM, 380. V. EFFECT, 380. I. DEFINITION. An affirmation is a solemn religious assevera- tion in the nature of an oath. 1 It is a solemn declaration made before a court, judge, or other authorized officer, and having the force of an oath ; an indulgence allowed by law to persons pro- fessing to have conscientious scruples against taking an oath.'-* II. HISTORY ENGLISH STATUTE LAW. An oath was the only method known to the common law for insuring the undertaking of a witness that he would speak the truth, and difficulty was experienced upon his refusal to comply with religious forms in other words, to guarantee the truth of his testimony by the sanc- tion of an oath in any shape. 3 Relief was afforded by allowing the party so refusing to make a solemn affirmation in lieu of an oath. An affirmation, therefore, had no existence at common law, but is entirely the product of statute. 4 1. Black L. Diet., Affirmation; Bouv. going so far even as to define an L. Diet., ib.\ I Green Ev. 371. oath as the "assurance of the truth of 2. Burrill L. Diet., Affirmation. an assertion by an appeal to a superior Appeal to Supreme Being. These sanction, that is, the ' superior sane- definitions are doubtless too narrow, tion'ofthe moral sense," thus mak- An affirmation does not, in strictness, ing his definition of an oath include the it is conceived, involve an appeal to a affirmations of atheists. Whar. Cr. Supreme Being. Abb. L. Diet., Affir- Ev. 353. mation; And. L. Diet., Affirmation. 3. Best Prin. Ev. 166. Although in the forms prescribed in 4. The Origin of the Practice of affirm- some of the earlier English statutes ing is to be found among the tenets of allowing the practice of affirming to the Quakers, who held that taking an certain sects who were conscientiously oath was unlawful and contrary to the scrupulous of taking an oath, an ac- Word of God. Before the revolution knowledgment, express or implied, of in England in 1688 the Quakers were a belief in a Higher Power is apparent, subjected to severe penalties for refus- i Geo. I, stat. 2, c. 6; 9 Geo. IV, c. 32. ing to take a legal oath. Anonymous, See also Atcheson v. Everitt, Cowp. i Ch. Cas. 237; 2 Freem. 27. These 382. The term " affirmation " can also hardships were in great measure re- properly be applied to the solemn moved by the Toleration Act, i Wm. declaration made by atheists in those & M., c. 18, 13, which first allowed jurisdictions where, by statute, athe- them to make a declaration of their ists are permitted to testify, Wharton fidelity to the state, instead of taking 377 American Statute Law. AFFIRM A TION. American Statute Law. III. AMERICAN STATUTE LAW. The United States have, like England, recognized the necessity of dealing tenderly with the consciences of those opposed to the taking of an oath, and have, without exception, allowed such witnesses to affirm in both civil and criminal proceedings. This privilege has generally been ex- tended also to grand and petit jurors, as well as to all officers from whom an oath is required by law. 1 the oath of allegiance. In 1696, by the temporary act of 7 & 8 Wm. Ill, c. 34, Quakers were allowed in civil cases, instead of giving oath, to affirm, said act being afterward continued by 13 Wm. Ill, c. 4, and made per- petual by I Geo. I, stat. 2, c. 6. Further relief was given by the statute of 8 Geo. I, c. 6. By the statute of 12 Geo. II, c. 13, Quakers are allowed to be enrolled as attorneys or solicitors on their affirmation. Their privileges were further extended by 22 Geo. II, c. 46, sec. 36, which, construing pre- vious statutes, permits them to affirm in all cases where an oath is required by act of Parliament, although still ex- pressly excluding them from giving evidence in criminal cases, serving on juries, or bearing any office or place of profit under the government. Ib. , sec. 37. But these actions must be both technically and in substance criminal to exclude the testimony of a Quaker. Atcheson v. Everitt, Cowp. 382. See also on this point Hilton v. Byron, 3 Salk. 248; Robins v. Say- ward, i Strange 441; Rex v. Green, i Strange 527; Wood v. Story, I P. Wms. 781 ; Castell v. Bambridge, 2 Strange 854 ; Rex v. Wych, 2 Strange 872 ; Cowell v. Waller, 2 Kely. 66; Oliver v. Lawrence, 2 Strange 946; Rex v. Bell, Andr. 200; Ex p. Gumbleton, 9 Mod. 232, 2 Atk. 70; Rex v. Turner, 2 Strange 1219; Rex v. Bridges, Say. 72; Rex v. Bow, Say. 75; Rex v. Gardner, 2 Bur. 1117. The statute 9 Geo. IV, c. 32, however, was passed, allowing both Quakers and Moravians to give evi- dence on simple affirmation in both civil and criminal cases. This was followed by an act allowing both of said sects to affirm in all cases where by law an oath is required. 3 & 4 Wm. IV, c. 49. A similar statute was passed for the relief of the Separatists. 3 & 4 Wm. IV, c. 82. The Common Law Procedure Act, 17 & 18 Vic., c. 125, sec. 20, enacts, with respect to civil cases, that any person called as a wit- ness who should sincerely object to be sworn might be permitted to affirm. This enactment was extended to civil cases by 24 & 25 Vic., c. 66. Atheists. The case of an atheist was first provided for in England by the Evidence Further Amendment Act, 32 & 33 Vic. ,c. 68, s. 4, which provided that every person called to give evidence in a court of justice, whether in a civil or criminal proceeding, who should ob- ject to take an oath, or who should be objected to as incompetent to take an oath, should, if the presiding judge be satisfied that the taking of an oath would have no binding effect on his conscience, declare as follows: " I sol- emnly promise and declare that the evidence given by me to the court shall be the truth, the whole truth, and nothing but the truth." This act, however, not applying to the promis- sory oath of allegiance appointed to be taken by members of Parliament before taking their seats, an atheist elected to a seat in that body would be in an unfortunate and difficult posi- tion. He could not affirm, as he did not come within the statutes allowing the use of affirmations to Quakers and other sects; and he could not take an oath, since this was impossible for an atheist. The controversy between the House of Commons and Mr. Brad- laugh, who found himself in this situ- ation (Clarke v. Bradlaugh, 7 Q. B. Div. 38, 8 App. Cas. 354), was termin- ated by the passage of the General Oaths Act of 1888, 51 & 52 Vic., c. 46, which authorized any person to affirm wherever an oath is required. Under sec. 3 of the same act, where a witness has been duly sworn, the fact that at the time of taking the oath he had no religious belief in nowise affects the validity of the oath. But where a witness does not state either of above circumstances, and is yet allowed to affirm, this will be error, sufficient for reversal. Rex v. Moore, 6 L. J. M. C. 80, 40 W. R. 304. 1. The provisions are various in form, but have the same general ef- 378 American Statute Law. AFFIRM A TION. American Statute Law. Children. Although it is a general rule that a child must be ex- amined upon oath, yet one brought up by those conscientiously scrupulous of taking an oath will doubtless be allowed to affirm. 1 strict Construction. But these statutes are in general strictly con- strued, at least as to the bare privilege of affirming. 2 feet, the most common being simply that the word " oath," whenever used, shall include affirmation, and the word "swear" shall include the word "affirm" wherever by law an affirmation may be substituted for an oath; i.e., a person who declares con- scientious scruples against taking any form of oath may satisfy any statute requiring an oath by making a solemn affirmation in' lieu thereof. Abb. L. Diet., Oath. United States. i of the Rev. Sts. of the United States provides that a re- quirement of an oath shall be deemed complied with by making affirmation in judicial form. See also Cons. U. S., Art. I, 3; II, i; VI; and Amend. Art. IV. New England States. It is 'generally provided in the New England states, and in one or two others which seem to have followed in their lead, that in substituting an affirmation for an oath the usual closing words of an oath, "so help me God," shall be omitted, and the words, "this I do under the pains and penalties of perjury," in- serted in their stead. But this, of course, is not necessary to make the affirmant liable to perjury if his testi- mony is false. Maine Rev. Stat. ch. i, sec. 7; New Hampshire Pub. Stat. ch. 19, sec. 5; Vermont Rev. Laws, sec. 4552; Massachusetts Pub. Stat. ch. 169, sec. 17; Rhode Island Cons. Art. IX, sec. 3; Connecticut Gen. Stat. sec. 3262; Ohio Rev. Stat. sec. 7282; Wisconsin Stat. sec. 4692. Atheists. Many states have, like England, either by their constitutions or by statutes, abrogated the rule of the common law which (since the es- sence of an oath is the recognition of a belief in a Supreme Being) rendered atheists incompetent as witnesses, and unable to fill any office to the legal as- sumption of which an oath is neces- sary. In more than half of the states the privilege of affirming in lieu of mak- ing oath is now given to atheists, either by provisions expressly doing away with incompetency on account of re- ligious belief, or by general provisions declaring complete equality of civil rights, privileges, and capacities, 379 which latter, perhaps, are sufficiently broad to accomplish the same pur- pose. Cooley Const. Lim. 586; Perry's Case, 3 Gratt. (Va.) 632; Bush v. Com. 80 Ky. 244. It is observable that, generally speaking, these changes are accomplished in the older states by statute, in those of newer growth by constitutional provision. They affect sometimes merely the competency of atheists as witnesses; sometimes the provision has for its object the protec- tion of all their civil capacities. United States. " The laws of the state in which the court is held shall be the rules of decision as to the com- petency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty." Rev. Sts. sec. 858. Massachusetts. Atheists are com- petent witnesses, but evidence of un- belief may be received to affect their credibility. Pub. Stat. ch. 213, sec. 6. Georgia. Religious belief goes only to the credit of the witness. Rev. Code, sec. 3853. Other States. In the following states constitutional or legislative provisions are found dealing more or less thoroughly with this question : Maine, Vermont, Massachusetts, Con- necticut, New York, Georgia, Florida, Mississippi, Louisiana, Texas, Arkan- sas, Missouri, Ohio, Indiana, Michigan, Minnesota, Wisconsin, Kansas, Ne- braska, Arizona, Nevada, Colorado, Wyoming, Washington, Oregon, Iowa, and California. 1. Phil. Evid. ii. See also William- son v. Carroll, i6N. J. L. 217. 2. Privilege of Affirming-. Where one who was not a Quaker was called to affirm, and refused to do so on the ground of conscientious scruples, he was committed for contempt, the liberty of affirming being strictly con- fined to Quakers under the [then] laws and practice of Massachusetts. U. S. v. Coolidge, 2 Gall. (U. S.) 364. And where a material witness before a grand jury is not sworn, he not being a Quaker, the indictment will be quashed. U. S. v. Coolidge, 2 Gall. (U. S.) 364- Form. AFFIRM A TION. Effect Witness Not Objecting to Oath. A witness who has no objection to be sworn cannot be affirmed to give evidence. 1 IV. FORM. The form of affirmations does not vary greatly in the different jurisdictions. 2 It is regulated sometimes by statute, sometimes by usage ; but even where it is prescribed by statute, a slight variance is not fatal. 3 V. EFFECT. The legal effect of an affirmation is, in all re- 1. Whar. Crim. Ev. 355 ; Will- iamson v. Carroll, 16 N. J. L. 217, where a witness was affirmed without alleging or even having any con- scientious scruples against taking an oath, the court saying: " Prima facie, every witness is to be sworn, and all evidence is to be given under oath. But the legislature, with becoming re- spect and deference to the religious sentiments of a numerous and highly respectable portion of the community, has provided a substitute for the sacra- mental or corporal oath, for such as are conscientiously scrupulous of sub- mitting to that ceremony. But this privilege, by the very terms of the statute, is to be extended only to such as 'shall allege' themselves 'con- scientiously scrupulous of taking an oath;' and we have no right to extend it to any others or upon any other terms." See also Wilson Bryan's Case, I Cranch (C. C.) 151, where a Metho- dist who objected to be sworn as a petit juror, but could not say that it was contrary to the principles of his religious society to take an oath, was ordered into the custody of the mar- shal for persisting in his refusal. But a special juror who stated that he had the persuasions of a Quaker, but was not a member of the Society of Friends, was allowed to affirm. Emmett v. Nor- ton, 8 C. & P. 506. 2. The most common form is, " You do solemnly, sincerely, and truly de- clare and affirm that you will state the truth," etc. And. L. Diet., Affirm. This is sometimes followed by the words, " this I do under the pains and penalties of perjury," as in the New England states, supra. 3. Variance from Statute. Thus, an official affirmation in the words "de- clare and affirm," instead of " promise and affirm," as required by statute, was deemed sufficient. Bassett v. Denn, 17 N. J. L. 432. So, where an oath was administered in the follow- ing form: " I, J. B., do solemnly and sincerely promise and swear (or affirm) that I will," etc., and at the bottom the words, " Affirmed before me, one of the justices of the county, Samuel Clarke," it was held valid in spite of its irregularity, the word "swear" being mere surplusage. State v. Shreve, 4 N. J. L. 297. Presumption as to Regulations of Stat- ute being Complied with. In general, the court, in the absence of any fact to the contrary, will presume that the of- ficer administering the affirmation was satisfied that the party making it was conscientiously scrupulous of taking an oath. It need not state this fact, nor need a statement of all forms gone through with appear on the face of the document. The affidavit will be as- sumed to be properly made. Loney v. Bailey, 43 Md. 10; Wolseleyz/. Worth- ington, 14 Ir. Ch. 369. Rule in Criminal Cases. A distinction has, however, been taken in this regard between civil and criminal cases. Coxe v. Field, 13 N. J. L. 215, where the court said: "The manner of admin- istering the oath or affirmation in a court of record, proceeding according to the common law, is presumed to be correct and legal unless it appears to be otherwise on the face of the record. In criminal cases no such presumption is allowed, and therefore in them the manner is required to be set out; but there is no case or even dictum for it in a civil cause." See also Clark v. Col- lins, 15 N. J. L. 473; State v. Fox, 9 N. J. L. 244; State v. Harris, 7 N. J. L. 361; State v. Sharp, 6 N. J. L. 341; State v. Putnam, i N. J. L. 260; State v. Davis, 69 N. Car. 383, where the court uttered the following dictum in a criminal case : " If the usual form of oaths upon the Holy Evangely of Almighty God is dispensed with, and an ' appeal ' or ' affirmation ' is substi- tuted, it must appear that the person sworn had conscientious scruples; else the 'appeal' or 'affirmation' is in- valid." It is not necessary in a civil case to ask an affirming juror if he be conscientiously scrupulous of taking an oath. Anonymous, 3 N. J. L. 930. 380 Effect. AFFIRM A TION. Effect. spects and for all purposes, the same as that of an oath, the affirmant being under the same obligation to speak the truth, and therefore liable to the penalties of perjury if he affirm falsely, 1 the general doctrine being that what is materially an oath in its administration is also so in its effect. 2 1. Bouv. L. Diet., Perjury ; Steph. Cr. 93, 94; Whar. Cr. Ev. 555; Am. & Eng. Ency. Law, Perjury, p. 303; Bishop Cr. Law, vol. 2, 1018 (4); And. L. Diet., Affirmation; Abb. L. Diet., Affirm. 2. Omichund v. Barker, Willes 538, I Atk. 21, where Willes, L.C.J., said: "Though Quakers and fanatics, devi- ating from the common sentiments of mankind, refuse to give a formal oath, if they do that which is materially the same, it is materially an oath." Pretending to be Quaker. Where one who affirms as being a Quaker is not of that sect, he yet undertakes that he is a Quaker, and his affirmation cannot be impugned on that ground. His affirmation, if false, will subject him to the penalties of perjury. Marsh v. Robinson, 2 Anstr. 479. Irregularity in an Affirmation will prob- ably not prevent an indictment for perjury from lying. State v. Shreve, 4 N. J. L. 297. 381 AFFRAY. I. DEFINITION, 382. n. THE INDICTMENT, 382. 1. The Form, 382. 2. Allegation of Affray, 382. 3. Allegation of Place, 383. HI. THE TRIAL, 383. 1. DEFINITION. An affray is the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people. 1 II. THE INDICTMENT 1. The Form. The indictment for an affray need only follow the language of the statute defining a crime.* 2. Allegation of an Affray. The authorities are conflicting as to whether the defendants may be charged merely with having " made an affray," without further allegation of fighting. 3 1. Am. & Eng. Ency. Law, tit. AFFRAY. 2. Com. -u. Barrett, 108 Mass. 302; State v. Sumner, 5 Strobh. (S. Car.) 53; Com. v. Welsh, 7 Gray (Mass.) 324. The above authorities are cases of prize-fighting. A Good Indictment. An indictment which charges that the defendants on, etc., at, etc., with force and arms, in a certain county, were unlawfully as- sembled together in a certain public street or highway, in a certain town, and then and there being so unlaw- fully assembled together, and arrayed in a warlike manner, then and there did make an affray, to the great terror of divers good citizens of the State, then and being, contrary, etc., is a good indictment for an affray. State v. Washington, 19 Tex. 128, 70 Am. Dec. 323. And an indictment is suf- ficient if it charges that the parties did, at a time and a public place desig- nated, " unlawfully and willingly fight together." State v. Billingsley, 43 Tex. 93. See also form of indictment given in Arch. Crim. PI. & Ev. 599. Assault and Battery. Care must be taken not to allege the affray as a mere assault and battery. Champer ?'. State, 14 Ohio St. 437. 3. In State v. Washington, 19 Tex. 128, 70 Am. Dec. 323, such an indict- ment was held to be good. In Stat'e v. Benthal, 5 Humph. (Tenn.) 519, an allegation that defendants made an affray "by fighting" was held to be good. But in State v. Priddy, 4 Humph. (Tenn.) 429, an indictment charging only that defendants " made an affray" was held to be bad. The court held that the facts which con- stitute the affray must be alleged, and not merely the technical designation thereof. State v. Priddy, 4 Humph. (Tenn.) 429; and Simpson v. State, 5 Yerg. -(Tenn.) 356; State v. Woody, 2 Jones (N. Car.) 335, are to the same effect. See also State v. Vanloan, 8 Ind. 182. Where the information stated that defendants fought in a public place, but whom or what they fought was not stated, the court held that the information was correctly quashed. 38- The Trial. AFFRA Y. The Trial. 3. Allegation of Place. The indictment must charge the fight- ing to have been in a public place. 1 But the place need not be described further than by alleging that it was a public one.* III. THE TEIAL Both Must Be Convicted. Where two defendants are jointly indicted for an affray, both must be convicted, or neither. 3 Including Assault and Battery. An indictment for an affray includes a charge of an assault and battery, 4 and the acquittal for an affray bars an indictment for assault. 5 The Verdict. The verdict may be special instead of general. The jury may find the facts and the court may draw the inference of guilt from it. 6 1. States. Heflin, 8 Humph. (Tenn.) 84; Shelton v. State, 30 Tex. 432. 2. Shelton v. State, 30 Tex. 432, where the court said: " It is true the statute does define what is intended to be a public place within the meaning of the law. But this is altogether a matter of evidence, and the state must show in sustaining the charge that the fighting was in a public place. The appellant, in pleading guilty, furnished the proof to the state in this case." But see State v. Heflin, 8 Humph. (Tenn.) 84, where it was held that an allega- tion that the affray took place in the town of Clarksville did not sufficiently describe the place. 3. Hawkins v. State, 13 Ga. 322, 50 Am. Dec. 517. Contra. One may be found guilty and the other acquitted. Cash v. State, 2 Overt. (Tenn.) 198. 4. McClellan v. State, 53 A!a. 640; Bishop Crim. Proc. 25. Ignored Against One Defendant. An indictment charging that the defend- ant and another "did commit an affray by fighting together by mutual and common consent, in public view," includes a charge of a mutual assault and battery, and the defendant maybe convicted under it, though the grand jury indorsed not a true bill as to the other. State v. Wilson, Phil. (N. Car.) 237. See State v. Allen, 4 Hawks (N. Car.) 356. 5. State v. Stanly, 4 Jones (N. Car.) 290. 6. Curlin v. State, 4 Yerg. (Tenn.) 143- 383 AGREED CASE. By WILLIAM A. McQuAiD. I. DEFINITION, 385- II. NATURE OF AGEEED CASE, 385- 1. Purpose, 385. 2. Contents, 385. 3. Mode of Stating, 386. 4. Like a Special Verdict, 386. 5- Judgment, 387. 6. What is Not an Agreed Case, 387. HI. NATURE OF THE CONTROVERSY, 388. 1. Generally, 388. 2. Affidavit of Reality, 388. IV. OFFICE OF THE STIPULATION, 389- 1 . Extent of Control by Parties, 389. 2. Effect as an Estoppel, 390. 3. Effect as a Waiver, 391. 4. Rescission, 393. V. FUNCTION OF THE COURT, 393- 1. Power of Inference, 393. 2. Abstract Questions, 394. 3. Power to Amend, 395. 4. Power to Discharge, 396. 5. Miscellaneous Powers, 397. VI. PRACTICE, 398. 1. Parties, 398. 2. CVwAj, 399. 3. Miscellaneous, 400. VII. PLEADINGS, 401- 1. Relation to the Agreed Case, 401. 2. Question of Sufficiency, 402. VIII. USE IN EVIDENCE OF AGREED CASE UPON A SUBSEQUENT TRIAL, 402. IX. APPEALS, 403- 1. Finality of Judgment, 403. 2. Whether an Appeal or Writ of Error Lies, 403. 3. Necessity for Bill of Exceptions, 403. 4. Relation of Appellate to Inferior Court, 404. 5. Right to Appeal Reserved by Stipulation, 405. X. STATUTORY PROVISIONS, 406. Case Made or Stated upon Appeal, see CASE MADE. Case Certified or Reported, see that title. 384 Nature of. AGREED CASE. Contents. 1. DEFINITION. An agreed case is a formal written statement of all the material facts of a real controversy which might be the subject of a civil action between two or more parties, signed by them for the purpose of submission to a court to obtain rulings of law thereon enforceable by judgment. The proceeding is wholly the creation of statute. II. NATURE OF THE AGREED CASE 1. Purpose, The purpose of an agreed case is to save the expense of a trial and dispense with a jury. 1 The parties perform the function of a jury and deter- mine the facts. There is no dispute about the facts, but there is as to the propositions of law to be deduced therefrom.'-* 2. Contents. An agreed case must contain all the material facts that are necessary for a determination of the questions of law arising out of the controversy. 3 1. McKethan v. Ray, 71 N. Car. 165; i Bouv. Law Diet. 288; I Troubat & Haly's Prac. (Pa.) 752; Fuller v. Trevoir, 8 S. & R. (Pa.) 529; Diehl v. Ihrie, 3 Whart. (Pa.) 143; Whitesides v. Russell, 8 W. & S. (Pa.) 44. 2. McLughan v. Bovard, 4 Watts (Pa.) 308; Diehl v. Ihrie, 3 Whart. (Pa.) 143; Williams v. Rochester, 2 Lans. (N. Y.) 169. As a Substitute for an Action. " This mode of procedure is not intended to provide for the submission of ques- tions of law for the opinion of the court merely, without a case in which a judgment might be rendered, in accordance with its opinion, legally determining the rights of the parties. It does not authorize a submission of questions in cases that are merely an- ticipated, nor of cases where the facts are disputed, nor is such submission intended to be merely advisory as to the rights of the parties. It is rather a substitute for an action, and its effect upon the rights of the parties is the same as that of an action. It is a short and convenient mode for the final adjudication of the case submit- ted." Newark R. Co. v. Perry County, 30 Ohio St. 120. As Commencement of a Suit. The filing of the agreed case is the com- mencement of the suit within a rule fixing the legal rights of the parties to a suit at the time of its commence- ment. Nashville Trust Co. v. Nash- ville Fourth Nat. Bank (Tenn.), 18 S. W. Rep. 822, 15 L. R. A. 710. 3. Sargent Invalid Furniture Co. v. Sargent, 65 N. H. 672. All facts material to a final and complete deter- mination of the controversy, with no- thing further to be done except to carry the judgment into effect. Moore v. Hinnant, 87 N . Car. 505; Piedmont R. Co. v. Reidsville, 101 N. Car. 404; Kneller v. Lang, 137 N. Y. 589; Levy v. Sheehan, 3 Wash. 420. See also post, V, Function of the Court. Facts Pertinent to the Particular Issue. See Royall v. Eppes, 2 Munf. (Va.) 479, to the effect that parties do not need to state all the facts of the case, but only those pertinent to a particu- lar question of law, providing that judgment may be entered for or against the plaintiff according as the decision of such question is for or against him. Kind of Action. In Pennsylvania an agreed case should contain the kind of action as well as the cause of action. It should appear whether the action is in debt, assumpsit, or trespass. Berks County v. Jones, 21 Pa. St. 413. Must Show a Cause of Action. An agreed case should show a cause of action in favor of one party against another. Gregory v. Perdue, 29 Ind. 66. Facts Regarded as True. Judgment on the agreed case must be rendered in favor of the party entitled thereto, taking the facts recited therein to be true; but if the facts so recited fail to show a cause of action in the party in whose favor the judgment is rendered by the trial court, it will not be upheld by the appellate court. Day v. Day, 100 Ind. 460; Manning v. Coogan, 49 N. H. 331; but see Taunton v. Taylor, 116 Mass. 254. Signature. An agreed case must be signed by each of the parties, or by their attorneys, in order that it may I Encyc. PI. & Pr. 25. 385 Nature of. AGREED CASE, Like a Special Verdict. Not Evidence, but Facts- The agreed case must contain the ultimate facts and should not be a mere recital of the evidence or circum- stances which may tend to prove the ultimate facts or from which they may be inferred. 1 Whatever is not distinctly stated must be taken not to exist. 3 3. Mode of Stating. An agreed case should be something more than a mere narrative of facts. 3 It should give the subject-mat- ter of contention and state the conflicting claims. 4. Like a Special Verdict. An agreed case is not a mere stipula- tion concerning evidence from which inferences of fact may be drawn, but it is equivalent to a finding of facts by a court or the special verdict of a jury in which every fact necessary to a re- covery must be expressly found in a conclusive and unambiguous form. 4 be heard. Farrand v. Bentley, 6 Mich. 280; Branchardiere v. Elvery, 18 L. J. Exch. 383. 1. Either a statement of facts by the parties ora finding of facts by the court is strictlyanalogoustoa special verdict, and must state the ultimate facts of the case, presenting questions of law only, and must not be a recital of evi- dence or of circumstances which may tend to prove the ultimate facts, or from which they may be inferred. Rai- mond -v. Terrebonne Parish, 132 U. S. 192; Burr -v. Des Moines R., etc., Co., I Wall. (U. S.) 99; Norris v. Jackson, 9 Wall. (U. S.) 125; Martinton v. Fair- banks, 112 U. S. 670; Glenn v. Fant, 134 U. S. 398; U. S. v. Eliason, 16 Pet. (U. S.) 291; Powers v. Provident Sav. Inst., 122 Mass. 443; Lewis v. Hoblit- zell, 6 Gill & J. (Md.) 259; Diehl v. Ihrie, 3 Whart. (Pa.) 143; Com. v. Baum, I Lehigh Valley Rep. (Pa.) 187; Kinsley v. Coyle, 58 Pa. St. 461; Union Sav. Bank v. Fife, 101 Pa. St. 388; Ament v. Sarver, 2 Grant's Cas. (Pa.) 34; Holmes v. Wallace, 46 Pa. St. 266; Luzerne County v. Glennon, 109 Pa. St. 564; Parker v. Urie, 21 Pa. St. 305; Melick v. Smith, i Leg. Opin. (Pa.) 157; Fisher v. Purdue, 48 Ind. 323; Sawyer v. Corse, 17 Gratt. (Va.) 230, 94 Am, Dec. 445; Ramsey v. McCue, 21 Gratt. (Va.) 349. 2. Berks County v. Jones, 21 Pa. St. 413; Berks County v. Pile, 18 Pa. St. 493 ; Canonsburg Iron Co. v. Union Nat. Bank (Pa., 1886), 6 Atl. Rep. 574; Holmes v, Wallace, 46 Pa. St. 268; Ford v. Buchanan, HI Pa. St. 31; Seiple v. Seiple, 133 Pa. St. 460; Com. v. Howard, 149 Pa. St. 302; Philadelphia, etc., R. Co. v. Water- man, 54 Pa. St. 337; Diehl v. Ihrie, 3 Whart. (Pa.) 143. Reference for Determination of Facts. The court has no power to refer the determination of the facts of a cause submitted upon an agreed case to a referee, and a judgment entered upon his report will be reversed and the agreed case quashed. Frailey v. Legion of Honor, 132 Pa. St. 578; Phelps v. Phelps, 145 Mass. 416. 3. The controversy arising on the facts, and the rulings to be made ac- cording to the opinion of the court of their legal operation, should be specifi- cally described. Overman v. Sims, 96 N. Car. 451; McKethan v. Ray, 71 N. Car. 165; Moore v. Hinnant, 87 N. Car. 505. But see, contra, Haeger v. Nixon, 69 N. Car, 108; Lewis v. Wake County, 74 N. Car. 194. 4. Goodrich v. Detroit, 12 Mich. 279; Brinkley v. Hambleton, 67 Md. 169; Keller v. State, 12 Md. 322, 71 Am. Dec. 596; Hartman v. Smith, 7 Mont. 19; Crane v. Whittemore, 4 Mo. App. 510; Fisher v. Purdue, 48 Ind. 323; James v, McWilliams,6 Munf.(Va.) 301. An agreed statement of facts, strictly speaking, corresponds to a special ver- dict. It presupposes that the issues have been settled and that the evi- dence has been passed upon, and it contains therefore no questions aris- ing on the pleadings or any matter of evidence, but results in the form of ascertained facts. It is the business of the court to deduce from them the proper legal conclusions. Barden v. St. Louis Mut. L. Ins. Co., 3 Mo. App. 248. There Must Be No Ambiguity. An agreed case stands in lieu of a special 86 Nature of. AGREED CASE. What is not. 5. Judgment. The judgment must be provided for in the agreed case, and such a judgment must be demanded as can be rendered upon the facts stated. 1 The agreed case must contain facts upon which an effectual judgment can be rendered. 8 6. What is Not an Agreed Case. Agreements as to evidence must not be mistaken for agreed cases. There is an essential difference between an agreed case and a case where the trial takes place before the court or jury upon an agreed statement of facts. 3 verdict, and all the facts necessary to a. determination of the case must be definitely ascertained. If there be any ambiguity, any omission of facts nec- essary to a recovery, any lack of clear- ness and certainty on material points, the judgment will not be allowed to .stand. Munford v. Wilson, 15 Mo. 540; White v. Walker, 22 Mo. 433; Gage v. Gates, 62 Mo. 412; Shaw v. Padley, 64 Mo. 519; Cam/. Lewis Coal Co., 96 Mo. 149, 9 Am. St. Rep. 328; Hughes v. Moore, 17 Mo. App. 148; Moore v. Henry, 18 Mo. App. 35; Ford it. Cameron, 19 Mo. App. 467; Stater/. Hannibal, etc., R. Co., 34 Mo. App. 591; Berks County v. Pile, 18 Pa. St. 493; Holmes v. Wallace, 46 Pa. St. 266; Kinsley v. Coyle, 58 Pa. St. 461; Union Sav. Bank v. Fife, 101 Pa. St. 388; Whitesides v. Russell, 8 W. & S. (Pa.) 44; Washburn -v. Baldwin, 10 Phila. (Pa.) 472; Clark v. Halberstat, i Miles (Pa.) 26; Norris v. Jackson, 9 Wall. (U. S.) 125; Glen v. Fant, 134 U. S. 398; Raimond v. Terrebonne Parish, 132 U. S. 192; Brewer v. Opie, I Call (Va.) 212; Sawyer v. Corse, 17 Cratt. (Va.) 230, 94 Am. Dec. 445; Real Estate Bank v. Rawdon, 5 Ark. 558; Keller v. State, 12 Md. 322, 71 Am. Dec. 596; Old Colony R. Co. v. Wil- der, 137 Mass. 537; Hovey v. Crane, 10 Pick. (Mass.) 440; Gillett v. Detroit, 46 Mich. 309; Newark, etc., R. Co. v. Perry County, 30 Ohio St. 120; Stock- ton v. Copeland, 23 W. Va. 696. 1. Williams v. Rochester, 2 Lans. 5W.y, 423. 3. Evidence, 424. 4. Decree, 427. a. Form, 427. . Modification, 430. . ^ . Enforcing Decree, 432. 5. Securing Alimony and Defeating Frauds Thereon, 440. a. Securing Alimony, 440. 1. ffV/V 0/" A 7 *? Exeat, 440. 2. JfVzV #/" Injunction, 442. 3. Decree as Lien on Land, 443. 4. Requiring Security, 445. . Fraudulent Assignments, 445. 6. Appeals. 446. IV. SUIT MONEY, COUNSEL FEES, AND COSTS, 45- 1. Definitions, 450. 2. .$*'/ Money, 451. 3. Coztnsel Fees, 453. 4. Gw/j.455. 407 General Observations. ALIMONY. As an Independent Eight. I. GENEKAL OBSERVATIONS ON ALIMONY!. As an Independent Eight a. GENERALLY. The right to alimony, by the English doctrine and that of most of the states in this country, has no in- dependent existence, but is ancillary to some other proceeding. 1 But some of the courts in this country have unreasonably exer- cised the authority of decreeing alimony without divorce, invoking, to enable them to do this, the aid of their ordinary equity powers. 8 1. Rees v. Waters, 9 Watts (Pa.) 93; Lawson v. Shotwell, 27 Miss. 630; Bankston v. Bankston, 27 Miss. 692; Jones v. Jones, 18 Me. 311, 36 Am. Dec. 723; Peltier v. Peltier, Harr. (Mich.) 19; Carroll v. Carroll, 42 La. Ann. 1071; Head v. Head, 3 Atk. 547; Ball v. Montgomery, 2 Ves. Jr. 191. In Louisiana a wife has no right of action during marriage against her husband for alimony unless a demand is made either for a separation or a divorce. Carroll v. Carroll, 42 La. Ann. 1072. And see Clark v. Clark, 78 Ga. 79; Legard v. Johnson, 3 Ves. Jr. 352. For a full treatment of the right to alimony and the amount grantable, see Am. & Eng. Ency. Law, tit. ALI- MONY. 2. i Bish. on M., D., & S. 1393- 1401. Alabama. Glover v. Glover, 16 Ala. 440; Kinsey v. Kinsey, 37 Ala. 393; Wray v. Wray, 33 Ala. 187; Hinds v. Hinds, 80 Ala. 225; Murray v. Murray, 84 Ala. 363. Arkansas. Wood v. Wood, 54 Ark. 172. California. Civil Code, 136; Gal- land v. Galland, 38 Cal. 265; Hagle v. Hagle, 68 Cal. 588; Poole v. Wilber, 95 Cal. 339. Iowa. Graves v. Graves, 36 Iowa 310, 14 Am. Rep. 525, where, admitting that the great weight of authority is the other way, the jurisdiction is nevertheless entertained on the ground of preventing multiplicity of suits, and of there being no adequate relief at law. Finn v. Finn, 62 Iowa 482. Kentucky. Butler v. Butler, 4 Litt. (Ky.) 201; Griffin v. Griffin, 8 B. Mon. (Ky.) 120; Gaines v. Gaines, 9 B. Mon. (Ky.) 295, 48 Am. Dec. 425; Logan v. Logan, 2 B. Mon. (Ky.) 142; Lockridge v. Lockridge, 3 Dana(Ky.) 28, 28 Am. Dec. 52; Boggess v. Boggess, 4 Dana (Ky.) 307- Mississippi. Garland v. Garland, 50 Miss. 694, a decision which is in con- flict with Lawson v. Shotwell, 27 Miss. 630. See also McFarland v. McFar- land, 64 Miss. 449; Verner v. Verner, 62 Miss. 260. Maryland. Wallingsford v. Wall- ingsford, 6 Har. & J. (Md.) 485, where the court said: "There can be no doubt the courts of equity in this state have jurisdiction in such cases [applications for alimony without di- vorce], and will decree relief where a proper foundation is laid for it. Their authority depends not merely on the constructive powers given to our courts of chancery, but is expressly delegated by the act of 1777, ch. 12." The following cases may also be consulted: Helms v. Franciscus, 2 Bland (Md.)544; Fornshill v. Murray, i Bland (Md.) 479, 18 Am. Dec. 344; McNamara's Case, 2 Bland (Md.) 566, note; Scott's Case, 2 Bland (Md.) 568, note; Govane's Case, 2 Bland (Md.) 570, note; Jamison v. Jamison, 4 Md. Ch. 289; Hewitt v. Hewitt, i Bland (Md.) 101; Crane v. Meginnis, i Gill & J. (Md.) 463; Wright v, Wright, 2 Md. 429, 46 Am. Dec. 723; Wilkes v. Wilkes, 3 Md. i; Dunnock v. Dunnock, 3 Md. Ch. 140; Galwith v, Galwith, 4 Har. & M. (Md.) 477; Keerl v. Keerl, 34 Md. 25; Tayman v. Tayman, 2 Md. Ch. 398; Coles v. Coles, 2 Md. Ch. 347; Ricketts v. Ricketts, 4 Gill (Md.) 109; Wiles v. Wiles, 3 Md. 7; Feigley v. Feigley, 7 Md. 563, 61 Am. Dec. 375; Schindel v. Schindel, 12 Md. 294; J. G. v. H. G., 33 Md. 401, 3 Am. Rep. 183. North Carolina. Anonymous, i Hayw. (N. Car.) 347; Spiller v. Spiller, 1 Hayw. (N. Car.) 482. Ohio. Bascom v. Bascom, Wright (Ohio) 632; Questel v. Questel, Wright (Ohio) 491; D'Arnsmont v. D'Arns- mont, 4 Law Rep. 321. South Carolina. Jelineau v. Jelineau, 2 Desaus. Eq. (S. Car.) 45; Anony- mous, 2 Desaus. Eq. (S. Car.) 198; 408 General Observations. ALIMONY. As an Independent Eight. In many states also the power of granting alimony without divorce has been given by statute, so that in one way or another this jurisdiction widely prevails. 1 b. JURISDICTION AND PROCEDURE. In cases where alimony is granted a's an independent right and not as a mere incident to divorce, jurisdiction usually belongs to the chancery courts of the state where the parties, or one of them at least, are domiciled. 3 And in general the practice and procedure are similar, or analogous, to that of suits for alimony with divorce. 3 Prather v. Prather, 4 Desaus. Eq. (S. Car.) 33; Mattison v. Mattison, I Strob. Eq. (S. Car.) 387, 47 Am. Dec. 541: Prince v. Prince, I Rich. Eq. (S. Car.) 282; Rhame v. Rhame, I McCord Eq. (S. Car.) 197, 16 Am. Dec. 597, where- in it is said: "That the courts of equity in this state have jurisdiction in cases of alimony is now settled by the long practice of this court. From necessity, such jurisdiction must exist somewhere; and there is no tribunal in the state where it can be so well exer- cised as in that court. It belongs to the ecclesiastical court in England, but we have no such court in this state. And even in England, during the Revo- lution, when the ecclesiastical courts were shut up, equity took cog- nizance of such cases, i Madd. Ch. 386. ... In England it appears that alimony is allowed only where a separation is decreed. And although our courts of equity have not the power to grant divorce, yet, as the two subjects, divorce and alimony, are in- separable companions in England, we must look to the causes of divorce to ascertain the grounds on which ali- mony will be allowed." Converse v. Converse, 9 Rich. Eq. (S. Car.) 535; Hair v. Hair, 10 Rich. Eq. (S. Car.) 163; Threewitsz/. Threewits, 4 Desaus. Eq. (S. Car.) 560; Briggs v. Briggs, 24 S. Car. 377. Texas. Walker v. Stringfellow, 30 Tex. 570. Virginia. Almond v. Almond, 4 Rand. (Va.) 662, 15 Am. Dec. 781; Purcell v. Purcell, 4 Hen. & M. (Va.) 507- 1. See Am. & Eng. Ency. Law, tit. ALIMONY. Allowance where Divorce Refused. An allowance under statute may sometimes be granted where a divorce is refused. Wis. Ann. Sts. 2366; Cray v. Cray, 32 N. J. Eq. 25. And an appeal will lie from the judgment refusing such allowance. Graves v. Graves, 50 Ohio St. 196. And so a petition for injunction, divorce, and alimony may be amended by striking out the prayer for divorce. Price v. Price, 90 Ga. 244. Alimony After Legislative Divorces has been sometimes granted by the courts, as where the act of divorce reserves the right to the judicial tribunal to grant alimony, Richardson v. Wilson, 8 Yerg. (Tenn.)67; or where the divorce is a mensa et tkoro, Crane v. Megin- nis, i Gill & J. (Md.) 463. See also Gaines v. Gaines, 9 B. Mon. (Ky.) 295, 48 Am. Dec 425. A legislative divorce act cannot give the wife alimony. To do so would be an exercise of judicial authority and therefore void. Crane v. Meginnis, I Gill & J. (Md.)46s. 2. See Am. & Eng. Ency. Law, tit. ALIMONY. Babbitt v. Babbitt, 69 111. 277, where it was held that one of the parties must reside in the county where the suit is brought. Jami- son v. Jamison, 4 Md. Ch. 289 ; Glover v. Glover, 16 Ala. 440 ; Keerl v. Keerl, 34 Md. 21, where, neither party having domicil in the state, though the husband owned prop- erty there, the court said: " To give jurisdiction to our courts in such cases, one or other of the parties must be domiciled within the state." But see Litowich v. Litowich, 19 Kan. 451, 27 Am. Rep. 145. 3. i Bish. on M., D., & S. 1412- 1421 ; Stewart on M. & D. 179, 367; Miller v. Miller, i N. J. Eq. 386 ; Almond v. Almond, 4 Rand. (Va.) 662, 15 Am. Dec. 781. Florida. " Proceedings against ab- sent defendants in suits for alimony shall be the same as in other chancery cases." Rev. Sts. 1488. Circumstances under which Right Granted. In those states in which st\tutes give this right, they usually 409 General Observations. ALIMONY. fa an Independent Bight. c. DECREE. The decree cannot be for a separation which the court has not the power to grant ;* nor can it be for specific prop- erty, unless under statutes, but merely for a periodical allowance.'- 4 Conditions. Usually the decree is that the husband pay alimony until reconciliation, or until he will take back his wife* and treat her properly. 3 And the affidavit of the wife is alone sufficient to support the order. Yule v. Yule, 10 N. J. Eq. 138. It is not necessary in these suits for the wife to sue by prochein ami. Knight v. Knight, 2 Hayw. (N. Car.) 101. But see Peltier v. Peltier, Harr. (Mich.) 19. And it is held in Georgia that, in proceedings for alimony under the Code, where there is no divorce pend- ing, relief may be granted by Injunc- tion or the appointment of a receiver or otherwise, and that to this end all necessary parties may be joined as defendants. Price v. Price, 90 Ga. 244. And it is provided by statute in Indiana that creditors must be joined as parties in this suit. Rev. Sts. 5132. Where Answer Alleges Insanity of plaintiff, temporary alimony and coun- sel fees may yet be granted without awaiting the determination of this issue or praying the appointment of a guardian ad litem for her. Storke v. Storke, 99 Cal. 621. 1. Jelineau v. Jelineau, 2 Desaus. Eq. (S. Car.) 45; Anonymous, 2 De- saus. Eq. (S. Car.) 198. 2. Almond v. Almond, 4 Rand. (Va.) 662, 15 Am. Dec. 781; Purcell v. Pur- cell. 4 Hen. & M. (Va.) 507; Lock- ridge -v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52; Wallingsford v. Wal- lingsford, 6 Har. & J. (Md.) 485; Hewitt v. Hewitt, i Bland (Md.) 101. See also I Bish. on M., D., & S. 1415. The court deals only with the in- come of the husband's property, and not divesting the title to any part of it or permanently depriving him of its use. Murray v. Murray, 84 Ala. define the circumstances under which il is granted. But where courts as- sume jurisdiction in these cases with- out statutory aid, the conditions of their doing so are not clearly to be deduced from the cases. Stewart on M. & D. 179. Temporary Alimony, by the weight of authority, may be granted, an allow- ance which Mr. Bishop says there is no just ground to dispute, i Bish. on M., D., & S. 1411; Am. & Eng. Ency. Law, tit. ALIMONY; Verner v. Verner, 62 Miss. 260; McFarland v. McFar- land, 64 Miss. 449; Daniels -v. Daniels, 9 Colo. 133; Johnson v. Johnson, 20 111. App. 495, overrztling Foss v. Foss, 2 111. App. 411; Holleman v. Holleman, 69 Ga. 676; Vreeland v. Vreeland, 18 N. J. Eq. 43. But see Finn v. Finn, 62 Iowa 482, where an order of the lower court that de- fendant pay money to enable plaintiff to carry on the action, but denying a motion for temporary alimony, was affirmed. As well as costs and counsel fees. Finn v. Finn, 62 Iowa 482 ; Harding v. Harding, 144 111. 588 ; cases supra. And additional counsel fees on ap- peal. Ex p. Winter, 70 Cal. 291. But the petition should make out a prima-facie case and be supported by verification and affidavit. Daniels v. Daniels, 9 Colo. 133. And oral testimony may be taken by the chancellor to assist him in de- termining the amount of alimony pen- dente lite, where proof by deposition would have caused unnecessary delay. McFarland v. McFarland, 64 Miss. 449. See Lochnane v. Lochnane, 78 Ky. 467. Relief. But the writ ne exeat (Yule v. Yule, 10 N. J. Eq. 138 ; Anshutz v. Anshutz, 16 N. J. Eq. 162 ; Peltier v. Peltier, Harr. (Mich.) 19; Anonymous, i Hayw. (N. Car.) 347 ; Prather v. Prather, 4 Desaus. Eq. (S. Car.) 33) ana an 'injunction will be granted. Greenland v. Brown, I Desaus. Eq. (S. Car.) 196 ; Anshutz v. Anshutz, 16 N. J. Eq. 166; Peltier v. Peltier. Harr. (Mich.) 19. 3. i Bish. on M. D. & 5.^1417; Anon- ymous, 2 Desaus. Eq. (S. Car.) 198; Hewitt v. Hewitt, i Bland (Md.) 101; Prather v. Prather, 4 Desaus. Eq. (S. Car. ) 33; Rhame v. Rhame, i McCord Eq. (S. Car.) 209, 16 Am. Dec. 597; Purcell v. Purcell, 4 Hen. & M. (Va.) 507- Pennsylvania. In this state a di- 410 General Observations. ALIMONY. As an Independent Bight. Duration of Payment. And the payment cannot be ordered for the term of the wife's life, but only during the joint lives of wife and husband. 1 vorce a ntensa et thoro and alimony may be decree in certain cases, "which shall continue until a reconciliation shall take place, or until the husband shall, by his petition or libel, offer to receive and cohabit with her again, and to use her as a good husband ought to do; and then in such case the court may either suspend the aforesaid sentence or decree, or in case of her refusal to return and co- habit, under the protection of the court, discharge and annul the same according to their discretion; and if he fail in performing said offers and engagements, the former sentence or decree may be revived and enforced, and the arrears of alimony ordered to be paid." Bright. Pur. Dig. p. 688, 31- Temporary Decree. A decree in these cases is therefore in its nature tem- porary; and when obtained in a state where the parties had only a tempora- ry residence, it will probably have force only so long as this residence continues, or at least until a decree of divorce is granted in the state in which the parties have their permanent resi- dence. Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227; 2 Bish. on M., D., & S. 70,71- Decree in Another State. But a de- cree for alimony without divorce ob- tained in one state will be enforced in another, which does not recognize this doctrine, by comity. Stewart v. Stewart, 27 W. Va. 167. 1. Briggs v. Briggs, 24 S. Car. 377; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52. Revision. The decree is usually sub- ject to revision or amendment, as cir- cumstances may require. Wade v. Wade (Cal., 1892). 31 Pac. Rep. 258; Anonymous, i Desaus. Eq. (S. Car.) 113; Thomas v. Thomas, 44 111. App. 604; Whorwood v. Whorwood, i Rep. Ch. 223; Purcell v. Purcell, 4 Hen. & M. (Va.) 507; Murray v. Murray, 84 Ala. 363; Hewitt v. Hewitt, i Bland (Md.) 101; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52; Logan v. Logan, 2 B. Mon. (Ky.) 142. And an original bill may be maintained to set the decree aside. Whorwood v. Whorwood, Rep. Ch. 223. Bonds to Keep the Peace have been re- quired of the husband as a part of the decree. Threewits v. Threewits, 4 Desaus. Eq. (S. Car.) 560. Enforcing Decree. This is done by sequestration, Anonymous, r Hayw. (N. Car.) 347; Spiller v. Spiller, i Ilayw. (N. Car.) 482; attachment for contempt, Davis' Appeal, 90 Pa. St. 131; Com. v. Jones, 90 Pa. St. 431 ; Purcell v. Purcell, 4 Hen. & M. (Va.) 507; making decree a lien on real estate, Questel v. Questel, Wright (Ohio) 491; plac- ing husband's property in the hands of a receiver or trustee, Murray v. Murray, 84 Ala. 363; or byyf. fa., pre- ceded by petition for same, as each instalment becomes due, Hewitt v. Hewitt, i Bland (Md.) 101. And se- curity of some sort is generally re- quired. Cases supra. In Pennsylvania it has been held that the surety of one ordered to pay alimony may surrender the body of the defendant to custody and be him- self released from his recognizance. Com. v. Jones, 90 Pa. St. 431. Avoidance of Decree. The decree is avoided by a renewal of cohabitation. Wallingsford v. Wallingsford, 6 Har. & J. (Md.) 485; Hewitt v. Hewitt, I Bland (Md.) 101; Prather v. Prather, 4 Desaus. Eq. (S. Car.) 33; Purcell v. Purcell, 4 Hen. & M. (Va.) 507; Wade v. Wade (Cal., 1892), 31 Pac. Rep. 258. And is probably barred by promise of good conduct, if the court is con- vinced it is made in good faith. Ken- ley v. Kenley, 2 How. (Miss.) 751. And see Almond v. Almond, 4 Rand. (Va.) 662, 15 Am. Dec. 781; I Bish. oil M..D., &S. 1538, 1539- Abatement. Suit for independent ali- mony abates on the death of one of the parties. I Bish. on M., D., & S. 1420. And if the wife did not bring suit dur- ing the husband's life she has no rights which she can enforce against his estate. Anonymous, 2 Desaus. Eq. (S. Car.) 198; Gaines v. Gaines, 9 B. Mon. (Ky.) 295, 48 Am. Dec. 425; Glenn v. Glenn, 7 T. B. Mon. (Ky.) 285, where the court said : " A bill, after the death of the husband, for alimony from the time of abandon- ment to her husband's death is a new species of suit, without precedent, and 411 Jurisdiction. ALIMONY. Divorce Courts Domicil. 2. As Incident to Some Other Proceeding. But, as stated above, the right to alimony is, according to the better view, merely inci- dent to some other proceeding, 1 commonly that of divorce ;* and it is in this regard that we shall hereafter consider it. II. JURISDICTION 1. Divorce Courts. Alimony being in general granted as an incident of divorce, the jurisdiction is therefore a part of the jurisdiction of divorce suits, and belongs to the divorce courts, whether courts of law or equity. 3 2. Domicil. The plaintiff must generally be domiciled 4 within the state, in order to give the courts of the state jurisdiction. 5 against the principles upon which a suit for alimony is sustained." See also Wallingsford v. Wallingsford, 6 Har. &. J. (Md.) 485; Lawson v. Shot- well, 27 Miss. 630; Sackett v. Giles, 3 Barb. Ch. (N. Y.) 204. But a decree dismissing a bill for alimony is no bar to another suit founded upon subsequently accruing causes. Griffin v. Griffin, 8 B. Mon. (Ky.) 120. Appeal from Order. An order allow- ing temporary alimony and counsel fees is such a final order as is appeal- able under the Code of Colorado. Daniels v. Daniels, 9 Colo. 133. 1. Ante, I, I a. p. 408. 2. 2 Bish. on M., D.,&S. 852; Bow- man v. Worthington, 24 Ark. 537; Foss v. Foss, 2 111. App. 413; Adams v. Adams, 100 Mass. 365, I Am. Rep. in; McGee v. McGee, 10 Ga. 486; Fischli v. Fischli, I Blackf. (Ind.) 360^ 12 Am. Dec. 251; Damon v. Damon, 28 Wis. 514; Prosser e/. Warner, 47 Vt. 667, 19 Am. Rep. 132; Parsons v. Par- sons, 9 N. H. 309, 32 Am. Dec. 362; Lamy v. Catron (N. Mex., 1890), 23 Pac. Rep. 773; Harshberger v. Harsh- berger, 26 Iowa 503. Supplicavit for Security of Peace. It is doubtful whether permanent ali- mony can be granted to a wife upon a supplicavit for security of the peace, against her husband, i Bish. on M., D., & S. 1389 and note 3. It seems, indeed, questionable whether the writ of supplicavit can now be granted at all, the remedy at law being adequate. In a recent Massachusetts case it was refused. Adams v. Adams, xooMass. 365, I Am. Rep. in. See also Ball v. Montgomery, 2 Ves. Jr. 191; Duncan v. Duncan, 19 Ves. Jr. 394; Lambert v. Lambert, 2 Bro. Parl. R. (Tomlins* ed.) 18; Prather v. Prather, 4 Desaus. Eq. (S. Car.) 33: Codd v. Codd, 2 Johns. Ch. (N. Y.) 141. Nullity Suits. No alimony can be granted with, or as supplementary to, a decree pronouncing an alleged mar- riage void for a cause existing at the time of the marriage. Am. & Eng. Ency. Law, tit. ALIMONY. 3. Chaires v. Chaires, 10 Fla. 308; Fischli v. Fischli, i Blackf. (Ind.) 360, 12 Am. Dec. 251; Taylor v. Gladwin, 40 Mich. 232; Lawson v. Shotwell, 27 Miss. 630, Phelps v. Baker, 60 Barb. (N. Y.) 107; McGee v. McGee, 10 Ga. 477; Stewart on M. & D. g 366. Removal of Cause. The court whence a case by motion is being removed has yet authority, pending the motion, to decree temporary alimony and suit money. Moe v. Moe, 39 Wis. 308. 4. "The rule is," says Swayne, J., " that she [a wife] may acquire a sepa- rate domicil whenever it is necessary or proper for her to do so. The right springs from the necessity for its ex- ercise, and endures as long as the necessity continues. The proceedings for divorce may be instituted where the wife has her domicil. The place of the marriage, of the offense, and the domicil of the husband are of no consequence." Cheever v. Wilson, 9 Wall. (U. S.) 108. Again, in Gould v. Crow, 57 Mo. 200, it is said : " Some courts hold that a wife cannot have a separate domicil from her husband; but this doctrine has been exploded, and the current of authority is that she may have a sepa- rate domicil for the purposes of di- vorce." See also Dutcher v. Dutcher, 39 Wis. 651; Am. & Eng. Ency. Law, tit. DOMICIL. 5. Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706; Thompson v. State, 28 Ala. 12; Wilcox v. Wilcox, 10 Ind. 436; Leith -v. Leith, 39 N. H. 20. So in House v. House, 25 Ga. 473, it was held that, "where neither party was in the state, or was a citizen in, or a 412 Jurisdiction. ALIMONY. Defendant Domiciled in State. 3. Appearance of Defendant. And although a divorce ex parte may be obtained on constructive service, yet no alimony can be decreed unless the defendant appears to the action in person or by attorney, 1 or has been duly served with process within the jurisdiction of the court. 2 4. Defendant Domiciled in State. But it seems that if the defend- ant is domiciled within the state, alimony may be decreed against him on constructive service, at least if the statutes of the state allow it. 3 resident of, the state, or, as far as it appeared, had property in the state," it was " a case over which no court of the state had, or could have, any jurisdiction a case to which no law of the state could possibly extend." Under the laws of Wisconsin a non- resident plaintiff cannot maintain an action for divorce in that state, even though the defendant be a resident there. Dutcher v. Butcher, 39 Wis. 651. 1. Sanford v. Sanford, 5 Day (Conn.) 53, the court saying : " In the present case the respondent was not merely nominally in court; he was actually in court, like any other suitor with his counsel, an officer of the court, duly retained in the cause. This gave the court jurisdiction, as a court of chan- cery, to pass a decree in personam." But the defendant may disprove the authority of the attorney to appear for him. Nichols v. Nichols, 25 N. J. Eq. 60. See also Gould -v. Crow, 57 Mo. 200. See APPEARANCES. 2. Cooley Const. Lim. 499; Harding v. Alden, 9 Me. i4o;Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132; Lytle v. Lytle, 48 Ind. 200; Middleworth v. McDowell, 49 Ind. 386; Turner v. Turner, 44 Ala. 437; Beard v. Beard, 21 Ind. 321; Madden v. Fielding, 19 La. Ann. 505; Ellison V. Martin, 53 Mo. 575; Gould v. Crow, 57 Mo. 200; Leith v. Leith, 39 N. H. 20; Nichols v. Nichols, 25 N. J. Eq. 60; Maguire v. Maguire, 7 Dana (Ky.) 181; Bun- nell v. Bunnell, 25 Fed. Rep. 214. See also State v. Hennepin County Ct., 42 Minn. 40. But see Doughty v. Doughty, 27 N. J. Eq. 315, affirmed in 28 N. J. Eq. 581. Where defendant is served but does not appear, alimony may be decreed against him without further notice. Park v. Park, 80 N. Y. 156, affirming 18 Hun (N. Y.) 466. Alimony Decree in Personam. The reason for this rule is that a de- cree for alimony is a decree in per- sonam, and is void without personal service on the defendant or his ap- pearance. Campbell v. Campbell, 37 Wis. 206; Russell v. Russell, 4 Greene (Iowa) 26, 61 Am. Dec. 112; Maguire v. Maguire, 7 Dana (Ky.) 181; Miller v. Miller. 75 N. Car. 70; Beard v. Beard, 21 Ind. 321; Pennoyer v. Neff, 95 U. S. 714; Turner v. Turner, 44 Ala. 437;'Odom v. Odom, 36 Ga. 286; Wallingsford v. Wallingsford, |6 Har. & J. (Md.)48s; Garner v. Garner, 56 Md. 127, where it was also held that so much of the decree as prevents a non-resident defendant from marrying again is in personam and therefore void. Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129. And see People v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; Stewart on M. & D. 2i7a; Bish. on M., D., & S. 79. Where Land Within Jurisdiction of Court. And the rule is not otherwise even when there is land within the jurisdiction of the court, Bunnell v. Bunnell, 25 Fed. Rep. 214; and cer- tainly not where neither party is domi- ciled within the state, Keerl v. Keerl, 34 Ind. 21. But see Stewart on M. & D. 366; Johnson v. Johnson. 31 Neb. 385; Ellison -v. Martin, 53 Mo. 575, where it was doubted whether, in a divorce suit by publication, not fol- lowed by appearance, property could be brought before the court by de- scribing it in the petition, and a judg- ment in rent for alimony be demanded thereupon. The court of a county in which an ali- mony suit is brought is without juris- diction to order the sale of land in another county. Wilmot v. Cole, 23 Wkly. Law Bull. (Ohio) 339; Bunch v. Bunch, 26 Ind. 400. 3. Beard v. Beard, 21 Ind. 321; Phelps -v. Baker, 60 Barb. (N. Y.) 107; Borden v. Fitch, 15 Johns. (N. Y.) 121, 8 Am. Dec. 225. 413 Jurisdiction. ALIMONY. Dissolution of Marriage. 5. Application after Dissolution of Marriage. The grant of ali- mony being a mere incident to a suit for divorce, 1 it follows that if the application 2 for alimony is made after the marriage has been wholly dissolved 3 it will be denied, 4 a final judgment being held to settle all property rights between the parties. 5 The rule is that where by leave of court a suit has been once dismissed, 6 or a final decree entered, the court has no longer jurisdiction over the subject-matter of the action, or over the parties, 7 unless this right has been reserved to itself by the decree 8 or by statute. 9 Service on Solicitor. And where an order requiring defendant to pay ali- mony and counsel fees cannot be served on him personally because he absents himself from the state, service upon his solicitor is sufficient to make the former guilty of contempt if he disobeys the order. Fairchild v. Fair- child (N. J., 1888), 13 Atl. Rep. 599. Property in Jurisdiction. And where the wife obtained by publication a de- cree for divorce and alimony against her husband, and the latter's property was within the jurisdiction of the court, and the wife brought suit to have said property subjected to the payment of the alimony decree, and the husband was served, and appeared and answered to said suit, it was held that, in spite of the general rule that an alimony decree obtained solely by publication is void, yet, since the prop- erty was in the jurisdiction of the court, and the husband had been served and had answered, and it was apparent that alimony should be granted, the decree for alimony would be sustained. Johnson v. Johnson, 31 Neb. 385. Temporary Alimony. An order for temporary alimony made ex parte where husband has no chance to be heard will be set aside; and an order of attachment for contempt based thereon is void. Sanchez v. Sanchez, 21 Fla. 346. But see Park v. Park, 80 N. Y. 156. Fraud. Where a woman fraudu- lently leaves a state to obtain a di- vorce with alimony in another state, the husband appearing in the latter, the decree of alimony, at least, will not be enforced in the courts of the state that she fraudulently left. Jack- son v. Jackson, i Johns. (N. Y.) 424. 1. And the general doctrine is that a decree of divorce valid by the laws of the state where granted is valid everywhere. Cheever -v. Wilson, 9 Wall. (U. S.) 108. But not where the court granting the same had no juris- diction. Wright v. W T right, 24 Mich. 181; though see Doughty v. Doughty, 27 N. J. Eq. 315. 2. And it does not matter whether the application is made in the same Wilde z>. Wilde, 36 Iowa 319 or in a different court from that in which the divorce was granted. Fischli v. Fischli, I Blackf. (Ind.) 360, 12 Am. Dec. 254 3. And this may be by death as well as by divorce. O'Hagan v. O'Hagan, 4 Iowa 509. 4. McQuien i>. McQuien, 61 How. Pr. (N. Y. C. PI.) 280; Wilde v. Wilde. 36 Iowa 319 ; Blythe v. Blythe, 25 Iowa 266; Holbrook v. Holbrook, 32 La. Ann. 13; Kirrigan v. Kirrigan, 15 N. J. Eq. 146; Fischli v. Fischli, I Blackf. (Ind.) 360, 12 Am. Dec. 251, where the court said: "Whenever a matter is adjudicated and finally de- termined by a competent tribunal, it is considered as forever at rest. This is a principle upon which the repose of society materially depends, and it therefore prevails, with a very few exceptions, throughout the civilized world. The principle not only em- braces what actually was determined, but also extends to every other mat- ter which the parties have litigated in the case." Jones v. Jones, 95 Ala. 443; Downey v. Downey, 98 Ala. 373; Harrison v. Harrison, 20 Ala. 649, 56 Am. Dec. 227. 5. Roe -v. Roe, 52 Kan. 724. 6. Thompson v. Thompson, 3 Head (Tenn.) 527; Chestnut v. Chestnut, 77 111. 346. 7. Kamp v. Kamp, 59 N. Y. 212 ; Johnson v. Johnson, 12 Daly (N. Y.) 232. 8. Cooledge v. Cooledge, I Barb. Ch. (N. Y.) 77. And see Petersine v. Thomas, 28 Ohio St. 599. 9. Stewart on M. & D. 370; Mass. Pub. Sts. ch. 146, 36. See also the case of a legislative divorce where the 414 Jurisdiction. ALIMONY. Divorce Ex Parte. 6. Where Cause Is Still Open. But if the divorce is a mensa ei thoro, the cause is regarded as still being open, and alimony may be granted at any subsequent time or term, 1 and in some cases even where the divorce is a vinculo.'* 7. Divorce Ex Parte. So also, in general, it may be said that if the divorce is ex parte, a decree for alimony may be subsequently rendered on the wife's application to the courts of her husband's jurisdiction, or those of her own, if he can be found there and per- sonally served. 3 act granting the divorce reserves the right to the judicial tribunal to grant alimony. Richardson v. Wilson, 8 Yerg. (Tenn.) 67. 1. 2 Bish. on M. ( D., & S. g 839-844; Stewart on M. & D. 370; Covell v. Covell, L. R. 2 P. & M. 411; West- meath v. Westmeath, 3 Knapp 42; Cooke v. Cooke, 2 Phillim. 40; Mc- Karracher v. McKarracher, 3 Yeates (Pa.) 5 6. But in Erkenbrach v. Erkenbrach, 63 How. Pr. (N. Y. C. PI.) 194, ali- mony was refused in the case of a di- vorce a mensa et thoro, where applied for by motion after judgment. This case was affirmed in 12 Daly (N. Y.) 258 and 96 N. Y. 456, and followed in Cullen v. Cullen, 55 N. Y. Super. Ct. 346, and Anderson v. Cullen (C. PI.), 8 N. Y. Supp. 643. 2. Crugom v. Crugom, 64 Wis. 253; Wilde v. Wilde, 36 Iowa 319. The re- lief in the latter case was granted in a subsequent supplementary proceeding which set forth a change of circum- stances. The court said: " An action for alimony cannot be maintained as an independent proceeding after a di- vorce of the parties. The relation of husband and wife must exist to justify a judgment for an allowance of this character to the wife. Blythe v. Blythe, 25 Iowa 266. But regarding the case as presented by this amended petition as a proceeding supplementary to the action for divorce for the purpose of modifying the decree therein rendered, affecting the property of the defend- ant, that pleading is defective and the demurrer was properly sustained." And in Shotwell v. Shotwell, i Smed. & M. Ch. (Miss.) 51, the court held that equity had jurisdiction of a bill by a divorced wife for alimony, de- claring that "the right to alimony is a separate and distinct right resulting from a decree for a divorce, but not identical with it." See also Jordan v. Jordan, 53 Mich: 550; Lawson v. Shot- well, 27 Miss. 630. 3. Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706; Rogers v. Rogers, 15 B. Mon. (Ky.)364; Stilphen v. Stilphen, 58 Me. 508, 4 Am. Rep. 305; Nichols v. Nich- ols, 25 N. J. Eq. 60; Wright v. Wright, 24 Mich. 180; Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep. 415, where the court said: "The question, therefore, is whether the ex-parte divorce can be made available, not merely to effect a dissolution of the marriage, but to de- feat the right of the petitioner to the alimony which the statute, upon the facts as they exist in regard to the husband's desertion, intended to pro- vide for her. We think the decree ought not to have such an effect. In arriving at this conclusion we make no distinction between a decree rendered, under the circumstances of this case, in a foreign and one rendered in a do- mestic forum." And see In re James Estate, 99 Cal. 374; Golden v. Golden (Ala., 1894), 14 So. Rep. 638. But it seems this rule will only apply to property owned in the state in which application is made at the time of the divorce, not that which is subsequently acquired. Van Orsdal v. Van Orsdal, 67 Iowa 35. See Am. & Eng. Ency. Law, tit. ALIMONY. Dismissal Without Prejudice. Where the court granting the divorce has dis- missed without prejudice the wife's application for alimony because per- sonal service could not be obtained on the husband, the court of another state may take jurisdiction of another appli- cation. Woods v. Waddle, 44 Ohio St. 449- Two Suits at Same Time. Where a divorce suit has been commenced by a wife in the courts of one state, herself a resident there, and the husband sub- sequently commences a divorce suit in another state and obtains a decree there before the first suit is brought to 415 Jurisdiction. ALIMONY. Enforcing Decree. 8. Enforcing Decree in Another State. The alimony decree is within the " full faith and credit " clause of the constitution of the United States; and the better opinion is that if, after the de- cree, the husband removes to another jurisdiction, it may be enforced in the courts of the latter, 1 or on the equity side of the proper United States courts. 2 trial, the first suit is not thereby af- fected; but the jurisdiction of the court therein, having once attached, will be exercised to the end, in order to do complete justice between the parties. Turner v. Turner, 44 Ala. 437. Fraud. So temporary alimony may be granted pending a suit to impeach a divorce on the ground of fraud. Ex p. Smith, 34 Ala. 455. And a decree of divorce obtained by fraud will not operate as a bar to ali- mony previously and properly decreed in another state. Barber v. Barber, 21 How. (U. S.) 582. So where a wife was not notified of the proceedings for divorce, being im- prisoned at the instigation of her hus- band, she may subsequently have the decree set aside and alimony granted. Golden v. Golden (Ala., 1894), 14 So. Rep. 638. Laches. But where the decree of di- vorce has been acquiesced in for sev- eral years, a court will not permit it to be disturbed for the purpose of giving alimony, Nichols v. Nichols, 25 N. J. Eq. 60; Roe v. Roe, 52 Kan. 724; or for any other purpose, especially where a third party has acquired rights by marriage, Singer v. Singer, 41 Barb. (N. Y.) 139. And reasons which would, in the first instance, have caused the decree to be withheld may not be sufficient to warrant setting it aside after a long space of time. Hub- bard -v. Hubbard (Colo., 1893), 34 Pac. Rep. 170. See also Chester v. Chester, 17 Mo. App. 657. 1 Borden v. Fitch, 15 Johns. (N. Y.) 121 ; Rogers v. Rogers, 15 B. Mon. (Ky.) 364; Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227: Nunn v. Nunn, 8 L. R. Ir. 298; Allen v. Allen, 100 Mass. 373; Stewart v. Stewart, 27 W. Va. 167; Rigney v. Rigney (Su- reme Ct.), 6 N. Y. Supp. 141. See Am. & Eng. Ency. Law, tit. ALIMONY. See particularly the late case of Dow v. Blake, 148 111. 76, where Ma- gruder.J., speaking for the court, says: " It is urged that an action will not lie in one state upon a judgment for alimony rendered in another state. There are some authorities which seem to support this contention. Such are Van Buskirk -v. Mulock, 18 N. J. L. 184; Barber v. Barber, 2 Pin. (Wis.) 297; Elliott v. Ray, 2 Blackf. (Ind.) 31. These cases proceed upon the ground either that at common law an action of debt will not lie upon a decree in equity, or that the decree for alimony sued upon was not final in its character and was subject to modifica- tion, or that the decree did not have the force and effect of a judgment in the state where it was rendered. But we see no reason why a final decree which directs the payment of a specific sum of money should not have the same force and effect as a judgment at law; and it has not been here shown that it does not have such force and effect in the state of Wisconsin. Where such a final decree is rendered in a court of competent jurisdiction in one state, the constitution of the United States re- quires that full faith and credit be given to it in every other state. It makes no difference, so far as the duty of the courts in another state to enforce it is concerned, that the specific sum re- quired to be paid by such final decree is for alimony." And see Howard v. Howard, 15 Mass. 196. But see, contra, Barber v. Barber, i Chand. (Wis.) 280, and cases cited in opinion quoted supra. And where a divorce was ob- tained in Ohio, neither party residing in that state, the decree, at least so far as the alimony therein granted was concerned, was held void in New York. Phelps v. Baker, 60 Barb. (N. Y.) 107. 2. Barber v. Barber, 21 How. (U. S.) 582, where the court, speaking through Swayne, J., said: "The parties to a cause for a divorce and for alimony are as much bound by a decree for both, which has been given by one of our state courts having jurisdiction of the subject-matter and over the par- ties, as the same parties would be if the decree had been given in the ecclesiastical courts of England. The 416 Procedure. ALIMONY. Pleadings. ILL PROCEDURE 1. Generally. In obtaining alimony in divorce cases the practice is similar to that of the ecclesiastical or the chancery courts, except where modified by statutes or rules ;* and in minor matters the ordinary methods of the court wherein the cause is being triced are followed.'-* 2. Pleadings a. PRAYER FOR ALIMONY. Alimony, being an incident of divorce, 3 has been granted by the court, although not specifically prayed either in the original bill or in the peti- tion; 4 or even although it is not prayed until after the decree of divorce and in a subsequent term, provided the libel is still pend- ing ; 5 but the necessary facts must be before the court to enable it to decree alimony under such circumstances. 6 Generally, how- ever, alimony should be prayed, 7 as well as all other relief which may be sought. 8 The proceeding is, according to the better doctrine, ancillary, 9 and therefore neither the original bill nor the answer, as the case may be, usually petitions alimony, or alleges the husband's facul- ties. This at least is the English, 10 and, according to a standard authority, the better American practice. 11 decree in both is a judgment of record, and will be received as such by other courts. And such a judgment or de- cree rendered in any state of the United States, the court having juris- dication, will be carried into judgment in another state, to have there the same binding force that it has in the state in which it was originally given. For such a purpose both the equity courts of the United States and the same courts of the states have jurisdic- tion." See also Cheever v. Wilson, 9 Wall. (U. S.) 108, and Bennett v. Ben- nett, Deady (U. S.) 299. 1. Sparhawk v. Sparhawk, 120 Mass. 390; Stewart on M. & D. 367. See Fla. Rev. Sts. 1488; Bau- man v. Bauman, 18 Ark. 320; 68 Am. Dec. 171; Lyon v. Lyon, 21 Conn. 186; State v. St. Louis Ct., 99 Mo. 222. 2. Gernon v. Hickey, 18 La. Ann. 454. But the entire divorce practice is very loose in many states. 2 Bish. on M., D., & S. 644; Vance v. Vance, 17 Me. 203; Brown v. Brown, 37 N. H. 536. 75 Am. Dec. 174. "In fact divorce is not a common-law or chan- cery proceeding, but a proceeding sui generis." Mangels v. Mangels, 6 Mo. App. 481. 3. Ante, pp. 408, 412, 4. Jackson v. Jackson, i McArth. (D. C.) 34; McEwen v. McEwen, 26 Iowa 375; Darrovv v. Darrow, 43 Iowa 411. 5. Prescott v. Prescott, 59 Me. 146; Sheafe v. Laighton, 36 N. H. 240. 6. Weishaupt v. Weishaupt, 27 Wis. 621; Wallingsford v. Wallingsford, 6 Har. & J. (Md.)48s; Lishey v. Lishey, 2 Tenn. Ch. i. 7. Chandler v. Chandler, 13 Ind. 492; Damon v. Damon, 28 Wis. 510; Prescott v. Prescott, 59 Me. 146; Clay- ton v. Clayton, I Ashm. (Pa.) 52. To What Court Application Made. And the application must be made to the court in which the divorce case is being conducted, not to any other. Bennett v. Southard, 35 Cal. 688. 8. Stewart on M. & D. 332. Remedy Where Alimony Not Prayed or Decreed. Where the divorce bill does not ask alimony, and the decree does not award it, a motion to amend the decree by adding a reference to a commissioner to take testimon'y as to alimony will be denied. The proper remedy, if any, is by supplementary bill in the nature of a bill of review. Jordan v. Jordan, 53 Mich. 550. 9. Ante, pp. 408, 412. 10. Rees v. Rees, 3 Phillim. 387; 'Cox v. Cox, 3 Add. Ecc. 276. 11. 2 Bish. on M..D..&S. 1067; Lov- ett v. Lovett, n Ala. 763. Though see, for a different opinion on the latter point, Prescott v. Prescott, 59 Me. 146. And even though this is the proper practice, yet it is too late to object that this has not been done after the court i Encyc. PI. & Pr. 27. 417 Procedure. ALIMONY. Pleadings. The Methods of Praying Alimony in this country are various, as by the original bill or libel, 1 by motion supported by affidavits,'-* or by petition alleging the faculties. 3 b. WHEN TEMPORARY ALIMONY ASKED AND GRANTED. A decree for alimony cannot be made unless the defendant has been personally served, 4 or has appeared in the action ; 5 nor can it be made after final decree. 6 These general principles apply, of course, to temporary as well as permanent alimony. 7 Therefore, alimony pendente lite should not be prayed before the suit is pending, 8 that refers the matter to a master to inquire into the estate of the husband. Lovett v. Lovett, ii Ala. 763. 1. Prescott v. Prescott, 59 Me. 146; Sheafe v. Laighton, 36 N. H. 243; Damon v. Damon, 28Wis. 510; Countz v. Countz, 30 Ark. 73; Wright v. Wright, 3 Tex. 168. 2. Weishaupt v. Weishaupt, 27 Wis. 621, where it is said: "It is objected that the application should have been made on petition, and not by motion. Of course the moving papers should show that an action for a divorce has been actually commenced and that a meritorious cause for dissolving the marriage exists. But whether this ap- pears by petition or by affidavits seems to us quite unimportant." Becker v. Becker, 15 111. App. 247; Pain v. Pain, So N. Car. 322; McGee v. McGee, 10 Ga. 477; Curtis v. Curtis, 54 Mo. 351; Vandegrift v. Vandegrift, 30 N. J. Eq. 76; Wright v. Wright, 3 Tex. 168; Lito- wich v. Litowich, 19 Kan. 451, 27 Am. Rep. 145; Reeves v. Reeves, 82 N. Car. 348; Swearingen v. Swearingen, 19 Ga. 265; and the late case of Kirsch v. Kirsch (C. PL), 18 N. Y. Supp. 447- No Notice of Motion Required. And no notice of the motion is required to be given to the opposite party. Becker v. Becker, 15 111. App. 247. But see Covell v. Covell, L. R. 2 P. & M. 411; Goss v. Goss, 29 Ga. 109. Where notice is required by statute it need not specify time and place of hearing. Zimmerman v. Zimmerman, 113 N. Car. 432. . 3. Becker z>. Becker, 15 111. App. 247; Sheafe v. Laighton, 36 N. H. 243; Longfellow -v. Longfellow, Clarke Ch. (N. Y.) 344; Mix v. Mix, i Johns. Ch. (N. Y.)io3; Culver z/. Culver, 8 B. Mon. (Ky.) 128; Osgood v. Osgood, 2 Paige (N. Y.) 621; Bray v. Bray, 6 N. J. Eq. 27; Lewis -v. Lewis, 3 Johns. Ch. (N. Y ) 519. And this is also the Eng- lish practice. Rees v. Rees, 3 Phillim. 387; Cox v. Cox, 3 Add. Ecc. 276. " Under our practice affidavits in support of a motion on the wife's part may take the place of allegations of faculties in snowing the husband's ability; and then the matter is in the sound discretion of the chancellor." Glenn v. Glenn, 44 Ark. 46. Reference to Master. And whe're the husband's faculties are not at all, or not sufficiently, set out, a reference to the master will be directed to inquire into the estate of the husband. Lovett v. Lovett, ii Ala. 763; Story v. Story, Walk. (Mich.) 421. Notice of Application. And where, on such an application for alimony pen- dente lite, the court passes an order requiring the husband to appear and show cause why the same should not be granted, no notice of said applica- tion is required previous to said order, Mudd v. Mudd, 98 Cal. 320; the notice of the divorce suit, to which alimony is but incident, being suf- ficient knowledge of the petition, McEwen v. McEwen, 26 Iowa 375; Curtis v. Curtis, 54 Mo. 351; Sanchez v. Sanchez, 21 Fla. 346. See Zimmer- man v. Zimmerman, 113 N. Car. 432; Lochnane v. Lochnane, 78 Ky. 467, where it was said: " No notice of the application for an allowance is now required by the statute, especially where, as in this case, the petition specifically seeks such an allowance. For all purposes sought to be accom- plished by the allegations and the prayer of the petition, the defendant must be presumed to be in court at all times after the service of process on him for the period specified in the Code." 4. Ante, p. 413. 5. Ante, p. 413. 6. Ante, pp. 414. 7. Cases cited ante, pp. 412-414. 8. Langan v. Langan, 91 Cal. 654. 418 Procedure. ALIMONY. Pleadings. is, until the defendant is in court, either by service or appearance. 1 So, likewise, temporary alimony and counsel fees will not be granted after final decree, 2 even although the motion therefor may have been made before; 3 nor after bill dismissed, 4 for, the 1. Russell v. Russell, 69 Me. 336; Weishaupt v. Weishaupt, 27 Wis. 621, where the court said: " The moving papers should show that an action for divorce has actually been commenced," although in the same case it was held that where a motion for suit money was heard after the service of com- plaint on defendant, the fact that the motion and the affidavit in support thereof was made before such service was immaterial. Informal Personal Appearance Not Suf- ficient. Where defendant in petition for divorce and alimony, not having been served with process, was present, however, in court at the term when the petition was filed, and made ob- jection personally to an order grant- ing alimony, it was held that such appearance and action did not give the cause the character of a Us pendens, and therefore that at such stage no order for temporary alimony could be made. Simmons v. Simmons, Phil. Eq. (N. Car.) 63. See Scragg v. Scragg, 63 Hun (N. Y.) 633, 18 N. Y. Supp. 487. Until there is a " proceeding by bill or petition," the judge at chambers has no jurisdiction over the matter of granting alimony under the Georgia Code. And no such proceeding exists until the bill or petition is filed in the of- fice of the clerk of court. The statute contemplates a suit with subpoena, or process duly issued. Yoemans v. Yoe- mans, 77 Ga. 124. So under the Iowa Code, providing that " the court " may order temporary alimony, the judge in vacation has no power to grant it. Prosser v. Prosser, 64 Iowa 378. Application before Term to which Summons Returnable. An application for temporary alimony is not admis- sible on a rule to show cause before the term to which the summons for appearance is returnable. Holland v. Holland, 4 Houst. (Del.) 86. But see Russell v. Russell, 69 Me. 336, where it was held that after service a justice in vaction might, on giving notice to defendant, grant temporary alimony, though before the return day of the writ. English Cases. In Deane v. Deane, 28 L. J. Mat. Cas. 23, it was held that where a citation for appearance had been served on the husband, but he had not in fact appeared, there could be no temporary alimony granted, the court suggesting as a reason that the cause would be, in the case of the hus- band's non-appearance, more quickly disposed of, and there would therefore be no need of granting a temporary allowance to the wife. The force of this reasoning may well be doubted. See also Tomkins -v. Tomkins, I Swab. & T. 163. 2. Newman v. Newman, 69 111. 167. 3. Wilde -v. Wilde, 2 Nev. 306. And it seems that it does not matter that the court in its order dismissing the action reserved to the plaintiff the right to make application for an additional al- lowance. Wagner v. Wagner, 34 Minn. 441. After Cause Continued. Court may hear motion for alimony pendente lite after a continuance of the cause and on the day of the filing of the motion. Curtis -v. Curtis, 54 Mo. 351. In Suit to Enforce Alimony. Alimony pendente lite will not be granted in a suit by a divorced wife to enforce a decree for alimony against her former husband. McQuien -v. McQuien, 61 How. Pr. (N.Y. C. PI.) 280. Nor in a suit to set aside a decree altogether. Wil- son -v. Wilson, 49 Iowa 546. But see Quelin v. Quelin, n Pa. Co. Ct. Rep. 265. 4. McCulloch -v. Murphy, 45 111. 256; Persons v. Persons, 7 Humph. (Tenn.) 183; Wagner v. Wagner, 34 Minn. 441. See also Rolt v. Rolt, 3 Swab. & T. 604; Twisleton v. Twisleton, L. R. 2 P. & M. 339; Anonymous, i Abb. Pr. N. S. (N. Y. Supreme Ct.) 307. Suit Dismissed by Husband. But the dismissal of the suit by the husband while the application for temporary alimony is under the consideration of the court will not defeat the claim, al- though it may diminish the amount, Waters v. Waters, 49 Mo. 385; al- though the application must be promptly made, Twisleton v. Twisle- ton, L. R. 2 P. & M. 339. But see Hart v. Hart, n Ind. 384. Attorney's Fees also will be allowed 419 Procedure. ALIMONY. Pleadings. suit being no longer pending, the jurisdiction of the court over the subject-matter and over the parties has ceased, So the ali- mony pendente lite already granted will cease. 1 But at any stage of the cause between suit pending and final decree temporary alimony may be asked and granted ;'* and it may be granted by order on the final hearing. 3 c. PERMANENT ALIMONY may be prayed at any time before final decree ; 4 but where the divorce is a memo, et thoro, it may be prayed after the decree, 5 though not if the divorce is a vinculo? d. DIVORCE AND ALIMONY SEPARATELY CONSIDERED. It is settled that, within the discretion of the court, the question of divorce and that of alimony may be separately considered, and the consideration of the latter deferred until it is found that there is to be a divorce ; r and it seems that this is the better practice, avoid- after reconciliation, and suit with- drawn. Burgess v. Burgess, i Duv. (Ky.) 287. 1. Langan v. Langan, 91 Cal. 654; Chestnut v. Chestnut, 77 111. 346; Wood v. Wood, 7 Lans. (N. Y.) 205. See Dunn v. Dunn, L. R. 13 P. & M. 9i But the verdict of a jury refusing permanent alimony does not affect temporary alimony previously granted by the judge. Gibson v. Patterson, 75 Ga. 549. 2. Stewart on M. & D. 385, and cases cited ante and post in this sec- tion. 3. Dinet v. Pfirshing, 86 111. 83; Pritchard v. Pritchard, 4 Abb. N. Cas. (N. Y. Supreme Ct.) 298; Shy v. Shy, 7 Heisk. (Tenn.) 125; Jeter v. Jeter, 36 Ala. 391; Kirk v. Kirk, 3 Scotch Sess. Cas., 4th Ser. 128; Frank- fort v. Frankfort, 3 Curt. Ecc. 715; Melizet v. Melizet, I Pars. Eq. Cas. (Pa.) 78. Summary. The whole matter is thus accurately summarized by Mr. Bish- op; "The rule, in the absence of adverse terms in the statute or an ad- verse interpretation of its effect, is that, while the wise and matter-of- course time to make the application for temporary alimony is immediately on the case being ripe therefor, it is permissible at any stage of the pro- ceeding, either before or after a ver- dict or an appeal." Citing the follow- ing cases: Helden v. Helden, n Wis. 554; Blake v. Blake, 70 111. 618; Call v. Call, 65 Me. 407; Stanford v. Stan- ford, i Edw. Ch. (N. Y.) 317; Moe v. Moe, 39 Wis. 308; Anonymous, 15 Abb. Pr. N. S. (N. Y. Supreme Ct.) 307; Jenkins v. Jenkins, 91 111. 167; Strong v. Strong, 5 Robt. (N. Y.) 612; Goldsmith v. Goldsmith, 6 Mich. 285; Leslie v. Leslie, n Abb. Pr. N. S. (N. Y. C. PI.) 311; Nicholson w. Nichol- son, 3 Swab. & T. 214; Jones v. Jones, L. R. 2 P. & M. 333; Pullen v. Pullen (N. J., 1889), 17 Atl. Rep. 310. Marriage Pending Appeal. But it will not be granted where a woman marries pending an appeal. Coad v. Coad, 40 Wis. 392. Suit Money and Counsel Fees. The rules stated in this section and the cases cited thereunder apply, gener- ally, as well to suit money and coun- sel fees as to temporary alimony. 2 Bish. on M., D., & S. g 955. 4. Prescott v. Prescott, 59 Me. 146; Galusha v. Galusha, 138 N. Y. 272. 5. Cooke -v. Cooke, 2 Phillim. 40; Westmeath v. Westmeath, 3 Knapp 42; McKarracher v. Mc- Karracher, 3 Yeates (Pa.) 56; 2 Bish. onM., D., & S. 839, 844. But see Erkenbrach v. Erkenbrach, 63 How. Pr. (N. Y. C. PI.) 194, 12 Daly (N. Y.) 258, 96 N. Y. 456; Cullen v. Cullen, 55 N. Y. Super. Ct. 346; An- derson v. Cullen (C. PL), 8 N. Y. Supp. 643- Notice. But the husband should be served with notice of the petition or motion. Covell v. Covell, L. R. 2 P. & M. 411. 6. Wilde v Wilde, 36 Iowa 319. For a full discussion of this question, see ante, pp. 50-63. 7. Patilyv. Pauly, 69 Wis. 419; Call v. Call, 65 Me. 407; Sheafe v. Laigh- ton, 36 N. H. 240; Gregory z>. Gregory, 32 N. J. Eq. 424; Prescott v. Prescott, 59 Me. 146; Ex p. Ambrose, 72 Cal. 420 Procedure. ALIMONY. Pleadings. ing, as it does, much labor and time should the divorce be finally refused. 1 And the grant of alimony may be included in the decree of divorce, or in a subsequent and separate judgment. 2 e. WHAT TO BE SHOWN TO WARRANT ALIMONY PENDENTE LITE. In order that alimony pendente lite may be granted, it must appear to the satisfaction of the court that there has been a marriage between the parties, 3 that they are at the time of the application living separately, 4 that a suit is pending for divorce, 5 that the wife is in need of an allowance, 6 and that 398; Rea v. Rea, 53 Mich. 40; Co- veil v. Covell, L. R. 2 P. & M. 411. 1. Pauly v. Pauly, 69 Wis. 419; Rea v. Rea, 53 Mich. 40; Galusha v. Galusha, 138 N. Y. 272; Cooledge -v. Cooledge, i Barb. Ch. (N. Y.) 77, 2 Bish. on M., D., & S. 871, 1069. It appears even to have been thought that until the court finds there is to be a divorce, it has no jurisdiction over the question of permanent alimony. Bradley v. Bradley, L. R. 3 P. & D. 50; Sidney v. Sidney, 36 L. J. N. S. Mat. Cas. 73, the House of Lords overrul- ing L. R. I. P. & M. 78. See also Charles v. Charles, L. R. I P. & M. 260. 2. Mangels v. Mangels, 6 Mo. App. 481; Campbell v. Campbell, 37 Wis. 206, citing Forrest v. Forrest, 6 Duer (N. Y.) 102, 3 Bosw. (N. Y.) 661, 25 N. Y. 501; Cook v. Cook, I Barb. Ch. (N. Y.) 639, 43 Am. Rep. 706; Prescott v. Prescott, 59 Me. 146; Will- iams v. Williams, 29 Wis. 517, 36 Wis. 362. 3. Swearingen v. Swearingen, 19 Ga. 265; Frith v. Frith, 18 Ga. 272, 63 Am. Dec. 289; McGee v. McGee, 10 Ga. 477; Vreeland v. Vreeland, 18 N. J. Eq. 43; McFarland v. McFarland, 51 Iowa 565; Smith v. Smith, 61 Iowa 138; York v. York, 34 Iowa 530; North v. North, i Barb. Ch. (N. Y.) 241, 43 Am. Dec. 778; Humphreys v. Hum- phreys, 49 How. Pr. (N. Y. Super. Ct.) 140; Methvin v. Methvin, 15 Ga. 97, 60 Am. Dec. 664; Smyth v. Smyth, 2 Add. Ecc. 254; Mitchell v. Mitchell, I Spinks Ecc. 102; Brinkley v. Brink- ley, 50 N. Y. 184; Wilson v. Wilson, 49 Iowa 544; Stewart on M. & D. 368; Vincent v. Vincent, 16 Daly (N. Y. 534; Collins v. Collins, 71 N. Y. 269; Roseberry v. Roseberry, 17 Ga. 139. " Alimony is a right which results froR. the marital relation, and the fact of marriage must be admitted or proved before there can be a decree for it even pendente lite" York v. York, 34 Iowa 530. But where a bill is brought by hus- band for divorce on the ground of a former marriage, temporary alimony and counsel fees will not be refused on ex parte affidavits contradicting the denials in the wife's answer. Vande- grift v. Vandegrift, 30 N. J. Eq. 76, the court saying: "To adjudge in li- mine upon ex parte affidavits that the complainant will probablysucceed, and therefore to withhold from the de- fendant the means of resisting the attack, would be substantially, to a cer- tain extent, a pre-judgment adverse to her on the merits, without lawful evidence, the consideration of which might, and probably would, be that she would be unable to defend her- self." See also Kline v. Kline, i Phila. (Pa.) 383- 4. McGee v. McGee, 10 Ga. 477; Battey v. Battey, i R. I. 212; Anshutz v. Anshutz, 16 N. J. Eq. 162; Tayman v. Tayman, 2 Md. Ch. 393; Daiger v. Daiger, 2 Md. Ch. 335. Reason of Rule. The reason of this rule is, of course, that while a wife is living with her husband she can pledge his credit for her support. Debenham v. Mellon, 5 Q. B. Div. 394; Stewart on M. & D. 384. And an allowance of temporary ali- mony would be improper; but the rule does not seem so clear in the case of counsel fees and suit money. Tay- man v. Tayman, 2 Md. Ch. 398. 5. McGee v. McGee, 10 Ga. 477; Weishaupht v. Weishaupht, 27 Wis. 621; Stewart on M. & D. 385 and cases there cited; ante, 418, note 8, 419, note i, and cases cited supra and infra. 6. Story v. Story, Walk. Ch. (Mich.) 421; Mix v. Mix, i Johns. Ch. (N. Y.) 108; Denton v. Denton, i Johns. Ch. (N. Y.) 364; Wood v. Wood, 2 Paige (N. Y.) 109; Vreeland v. Vreeland, 18 421 Procedure. ALIMONY. Pleadings. the husband has property out of which such an allowance can be granted. 1 These allegations must therefore be made somewhere in the pleadings in the cause, 2 either in the original bill or libel, the pe- tition alleging the faculties, or the affidavits supporting the motion, according to the method adopted of praying alimony. Of course the bill must present a case for relief, and be good upon its face ; 3 and if it appears that the wife cannot succeed, 4 or that the bill is demurrable, 5 no temporary alimony will be granted. But it is only necessary to make out a prima-facie case,** on which an allowance will be made almost as a matter of course, 7 in spite of a plea to the merits 8 or even to the jurisdiction of the court. 9 /. HEARING OF HUSBAND. The husband should be allowed to N. J. Eq. 43; McFarland v. McFar- land, 51 Iowa 565; Coles v. Coles, 2 Md. Ch. 341; Daiger v. Daiger, 2 Md. Ch. 335; Methvin v. Methvin, 15 Ga. 97, 60 Am. Dec. 664; Ross v. Ross, 47 Miih. 185; Coad v. Coad, 40 Wis. 392; Porter v. Porter, 41 Miss. 116; Kene- mer v. Kenemer, 26 Ind. 330; Eaton v. Eaton, L. R. 2 P. & M. 51; Rawson v. Rawson, 37 111. App. 491; Glasscock v. Glasscock, 94 Ind. 163 ; Farwell v. Farwell, 31 Me. 591; Chaffee z/. Chaffee, 14 Mich. 463. 1. Ross v. Ross, 47 Mich. 185; Por- ter v. Porter, 41 Miss. 116; Lovett v. Lovett, ii Ala. 763; Weishaupt v. Weishaupt, 27 Wis. 621 ; Story v. Story, Walk. Ch. (Mich.) 421; Mit- chell v. Mitchell, i Spinks Ecc. 103; Worden v. Worden, 3 Edw. Ch. (N. Y.) 387 ; Glasscock v. Glasscock, 94 Ind. 163; Becker v. Becker, 15 111. App. 247; Schmidt v. Schmidt, 26 Mo. 235; Wright v. Wright, 3 Tex. 168; Sheafe v. Sheafe, 36 N. H. 155; Beavan v. Beavan, 2 Swab. & T. 652. 2. Glasscock v. Glasscock, 94 Ind. 163; I Bish. on M. D. & S. 1069; Stewart on M. & D. 386; and cases supra, p. 421, notes 3-6, p. 422, note I. 3. Porter v. Porter, 41 Miss. 116, Rose v. Rose, 11 Paige (N. Y.) 166; Wood v. Wood, 2 Paige (N. Y.) 454; Rawson v. Rawson, 37 111. App. 491; Harding v. Harding, 40 111. App. 202; Collins -v. Collins, 71 N. Y. 269; Mar- tin v. Martin, 8 N. J. Eq. 563; Phelan v. Phelan, 12 Fla. 449. 4. Harding v. Harding, 40 111. App. 202; Jones v. Jones, 2 Barb. Ch. (N. Y.) 146. 5. Rose v. Rose, n Paige (N. Y.) 166; Wood v. Wood, 2 Paige (N. Y.) 454; Langan v. Langan, 91 Cal. 654. But see Mix v. Mix, i Johns. Ch. (N. Y.) 108; Chaffee v. Chaffee, 14 Mich. 463- 6. Coles v. Coles, 2 Md. Ch. 341 ; Daiger v. Daiger, 2 Md. Ch. 335; Mc- Curley v. McCurley, 60 Md. 189, 45 Am. Rep. 717; Little v. Little, 63 N. Car. 22; Porter v. Porter, 41 Miss. 116; Brinkley v. Brinkley, 50 N. Y. 184; McGee v. McGee, 10 Ga. 477; Vandegrift v. Vandegrift, 30 N. J. Eq. 76; cases cited supra, notes 3-5; Stew- art on M. & D. 386, and cases there cited ; Gray v. Gray (Supreme Ct.), 28 N. Y. Supp. 856; Newsome v. New- some (Ky., 1894), 25 S. W. Rep. 878; Daniels v. Daniels, 9 Colo. 133. 7. Wright v. Wright, i Edw. Ch. (N. Y.) 62; Tayman v. Tayman, 2 Md. Ch. 393; cases supra, pp. 97, .98; Am. & Eng. Ency. Law, tit. ALIMONY. 8. McGee v. McGee, 10 Ga. 478 ; Story v. Story, Walk. Ch. (Mich.) 421. 9. Coles -v. Coles, 2 Md. Ch. 341 ; Brinkley v. Brinkley, 50 N. Y. 184; Moe v. Moe, 39 Wis. 308. See Brad- street v. Bradstreet, 6 Mackey (D. C.) 502, where it was held that, although as a general rule temporary alimony could be allowed before a plea to the jurisdiction was disposed of, yet where it appeared that the suit was brought at the instigation of the plaintiff's relatives, who promised to provide means therefor, it would be refused. Next Friend Besponsible. The grant of temporary alimony and suit money is not entirely a matter of course, for the wife sues by next friend. He is responsible until it is found that she has a meritorious cause of action. Worden v. Worden, 3 Edw. Ch. iX Y.) 387. 422 Procedure. ALIMONY. be heard, but only, it seems, in order that the court may form some idea of the amount to be granted, 1 and he may be in de- fault. But if he is complainant, temporary alimony will be awarded, whether he has means or not ; and if he does not pay, he will not be allowed to prosecute his suit. 3 g. PARTIES. The wife's bill may join as parties those to whom in fraud of her rights the husband has conveyed his property ; 4 and even alimony pendente lite may be decreed against them. 5 h. How WIFE SUES. Generally in a divorce suit a wife sues and defends as feme sole.* and the application for alimony must be made in the name of the wife, not that of counsel. 7 1. Story v. Story, Walk. Ch. (Mich.) 421; Wright v. Wright, i Edvv. Ch. (N. Y.) 62; Jenkins v. Jenkins, 69 Ga. 483; Smith v. Smith, I Edw. Ch. (N. Y.) 255; Goss v. Goss, 29 Ga. 109. 2. Park v. Park, 80 N. Y. 156, 18 Hun 466; Hicks v. Hicks, 9 Ir. Rep. Eq. 175; Constable v. Constable, L. R. 2 P. & M. 17, 39 L. J. Mat. Cas. 17; Graves v. Graves, 2 Paige (N. Y.) 62, where it was held that if husband makes default and suffers wife's bill to be taken as confessed and a divorce is granted, he cannot afterwards set up in opposition to wife's claim for costs and alimony any matter which, if set up in the answer, would have been a sufficient ground for refusing a di- vorce. See also Pullen v. Pullen (N. J., 1889), 17 Atl. Rep. 310. 3. Mangels v. Mangels, 6 Mo. App. 481; Thayer v, Thayer, 9 R. I. 377; Purcell v. Purcell, 3 Edw. Ch. (N. Y.) 194; Bird v. Bird, i Lee 572, 5 Eng. Ecc. 455; Bruere v. Bruere, i Curt. Ecc. 566, 6 Eng. Ecc. 391; Moss v. Moss, 15 W. R. 532; Rublinsky v. Rublinsky (Super. Ct.), 24 N. Y. Supp. 920. But see Kock v. Kock, 42 Barb. (N. Y.) 515; Jenkins v. Jenkins, 69 Ga. 483; Sanchez v. Sanchez, 21 Fla. 346, where, in a suit for divorce brought by the husband, an order for temporary alimony and suit money was set aside, it not appearing in the record that the husband had notice of the motion or an opportunity to be heard. 4. Damon v. Damon, 28 Wis. 510. And the bill will not be multifarious because such grantees claim under several conveyances executed with the same common intent. Hinds v. Hinds. 80 Ala. 225. Intervening Party A woman who intervenes in an action on the ground of having contracted marriage with one of the parties thereto, the valid- ity of which marriage may be affected by a judgment in the case, may be al- lowed alimony and counsel fees. Anonymous, i Abb. Pr. N. S. (N. Y. Supreme Ct.) 307. 5. Black v. Black, 5 Mont. 15. Order Void Against One Not a Party. In the case of a divorce for insanity, where the court orders the guardian to pay alimony, the order will be void where he has not been made a party to the suit. Tiffany v. Tiffany, 84 Iowa 122. 6. 2 Bish. on M., D., & S. 513; Stewart on M. & D. 322; Wright v. Wright, 3 Tex, 168. But not where the proceeding is in equity, 2 Bish. on M., D., & S. 513; or the bill is for a separation, Wood v. Wood, 2 Paige (N. Y.) 454; or the wife is an infant, Wood v. Wood, 2 Paige (N. Y.) 108. But see Jones v. Jones, 18 Me. 308, 36 Am'. Dec. 723; Besore v. Besore, 49 Ga. 378; also Beavan v. Beavan, 2 Swab. & T. 652. 7. Tayman v. Tayman, 2 Md. Ch. 393. See also Creamer v. Creamer, 36 Ga. 618; Kelly v. Kelly, 32 L. J. Mat. Cas. 181; McCulloch v. Murphy, 45 111. 256. Conditions. Usually temporary ali- mony is not granted on conditions, as that of a consent to a reference, Strong v. Strong, 5 Robt. (N. Y.) 612; or waiving a jury trial, Lowenthal v. Lowenthal, 68 Hun (N. Y.) 366, disap- proving Siegel z>. Siegel (Super. Ct.), 19 N. Y. Supp. 906, wherein the plaintiff, by insisting on her constitutional right to trial by jury and thereby postpon- ing the case for a year, the defendant being ready, was deprived, by order, of alimony already granted. Amendment. A bill for divorce a. mensa et thoro may be amended by in- 423 Procedure. ALIMONY. Evidence. 3. Evidence Wife's Affidavit. The wife's prayer for alimony must, in general, be supported by her own affidavit, 1 and should also be supported by those of other parties. 8 The Husband's Answer ought also to be under oath, 3 but there is no uniform rule of practice in this country. 4 And Affidavits and Depositions are commonly filed on both sidae, 5 as serting a viniculo. Turner v. Turner, 44 Ala. 437. 1. Glenn v, Glenn, 44 Ark. 46; Schonwald v. Schonwald, Phillips Eq. (N. Car.) 215; Bayly v. Bayly, 2 Md. Ch. 326; Countz v. Countz, 30 Ark. 73; McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407; Daniels v. Daniels, 9 Colo. 133; Vandegrift v. Vandegrift, 30 N. J. Eq. 76; Glasser v. Glasser, 28 N. J. Eq. 22; Wright v. Wright, i Edw. Ch. (N. Y.) 62; Ed- wards -v. Edwards, Wright (Ohio) 308; and Wright v. Wright, 3 Tex. 168, where the court said: " As a rule of practice the courts should require ap- plications for alimony to be sustained by the oath of the party or evidence aliunde, otherwise they cannot act advisedly in determining upon the amount which, under all the circum- stances, the husband should contrib- ute to the support of the wife." North Carolina. In this state it is re- quired by statute. Code, vol. i, 1287. New York. It has been held in this state that where adultery is charged in the husband's bill, the wife will be required to deny this charge under oath before she can obtain an award of temporary alimony and suit money; but such denial under oath is con- clusive when made so far as the tem- porary allowance is concerned. Wood r>.Wood, 2 Paige (N. Y.) 108; Osgoodz/. Osgood, 2 Paige (N. Y.) 621; Williams v. Williams, 3 Barb. Ch. (N. Y.) 628; Rublinskyz'. Rublinsky (Super. Ct.),24 N. Y.Supp. 920. See also Clark z/.Clark, 7 Robt. (N. Y.) 284, and Rawson v. Rawson, 37 111. App. 491, where depo- sitions to prove such adultery were allowed to be read in evidence. 2. Brinkley v. Brinkley, 50 N. Y. 184; McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407; Bayly v. Bayly, 2 Md. Ch. 326. See Daniels v. Daniels, 9 Colo. 133- Though Not Indispensable. For where she swears absolutely, even the writ of ne exeat may be granted. Mc- Gee v. McGee, 8 Ga. 295, 52 Am. Dec. 407; Bayly v. Bayly, 2 Md. Ch. 326. It is curious to note that at one time it was doubted whether the wife could make affidavit in such a case. See Bayly v. Bayly, 2 Md. Ch. 326; Denton v. Denton, i Johns. Ch. (N. Y.) 441; Shaftoe v. Shaftoe, 7 Ves. Jr. 171; Sedgwick v. Walkins, I Ves. Jr. 49. 3. Wright v. Wright, 3 Tex. 168. 4. 2 Bish. on M., D., & S. 1081. English Practice. Under the eccle- siastical practice, as under that of the later divorce court, the husband's an- swer to the wife's petition for alimony was required to be under oath. Con- stable -u. Constable, L. R. 2 P. & M. 17; Mumby v. Mumby, L. R. i P. & M. 701; Snowdon v. Snowdon, L. R. 2 P. & M. 200. And, by rule of court, the wife is allowed to force the hus- band to a fuller disclosure of his fac- ulties, or even to examine him as a wit- ness. Anderson v. Anderson, L. R. i P. & M. 512; Jennings v. Jennings, L. R. i P. & M. 35; Nokes v. Nokes, 3 Swab. & T. 529; Williams v. Williams, L. R. i P. & M. 370. Vermont has a similar provision in her statutes. Rev. Laws, 2381. Where a husband has not filed his answer under oath, he cannot cross- examine witnesses on a motion for an allotment of temporary alimony or contradict their evidence. Constable v. Constable, L. R. 2 P. & M. 17. The wife need in no case accept the answer, but may furnish additional testimony if she desires. Brisco v. Brisco, 2 Hag. Con. 199; Higgs v. Higgs, 3 Hag. Ecc. 472, 5 Eng. Ecc. 186; Durant v. Durant, I Hag. Ecc. 528, 3 Eng. Ecc. 231; Westmeath v. Westmeath, 3 Knapp 42. The answer is always construed most strongly against the husband. Robinson v. Robinson, 2 Lee 593, 6 Eng. Ecc. 255. And he will be pre- sumed " to have made every possible deduction in his favor." Rees v. Rees, 3 Phillim. 387. 5. Dougherty v. Dougherty, 8 N. J. Eq. 540; Cray v. Cray, 32 N. J. Eq. 25; Wooley v. Wooley, 24 111. App. 431; Rawson v. Rawson, 37 111. App. 424 Procedure. ALIMONY. Evidence. well as other evidence adduced. 1 The Burden of Proving facts necessary in order to authorize a de- cree for alimony is upon the wife, 3 and it is error to exclude the testimony offered by the husband in rebuttal of the same* 3 but the wife need only make out a prima-facie case, 4 which, when 491; Simonds v. Simonds, 10 N. Y. Supp. 606. 1. Martin v. Martin, 8 N. J. Eq. 563; Wright v. Wright, 3 Tex. 168; Jenkins v, Jenkins, 69 Ga. 483; Jan- vrin v. Janvrin, 59 N. H. 23; Bardin v. Bardin (S. Dak., 1893), 56 N. W. Rep. 1069. Oral Testimony. So the court does not err in hearing oral testimony in support of an application for tempo- rary alimony. Lochnane v. Lochnane, 78 Ky. 467; McFarland v. McFarland, 64 Miss. 449. Accessions of Property. So on the hearing of a petition for alimony filed after the husband has procured an ex farte divorce in another state, the wife may introduce evidence .to show that he has received large accessions of property since the date of the decree, and the court may consider the same in making its award. Cox v. Cox, 20 Ohio St. 439. 2. Collins v. Collins, 71 N. Y. 274; Countz v. Countz, 30 Ark. 73; Glasser v. Glasser, 28 N. J. Eq. 22; Wright v. Wright, i Edw. Ch. (N. Y.) 62; Carpen- ter v. Carpenter, 19 How. Pr. (N. Y. Supreme Ct.) 539; McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407; Worden v. Worden, 3 Edw. Ch. (N. Y.) 387; Free- man v. Freeman, 49 N. J. Eq. 102; Vincent v. Vincent, 16 Daly (N. Y.) 534; Glasscock v. Glasscock, 94 Ind. 163; Cray v. Cray, 32 N. J. Eq. 25; Becker v. Becker, 15 111. App. 247. General Admissions. An affidavit of the plaintiff showing general admis- sions made to her by the defendant husband, coupled with a denial of the specific act charged in the bill of com- plaint, will not be sufficient to supply the defect in a bill unsupported by affi- davits and denied under oath in the answer. Qutere, whether the intro- duction into an affidavit of such ad- missions of the husband does not con- travene the rule forbidding the wife to divulge private communications. Monk v. Monk, 7 Robt. (N. Y.) 153. And a general assertion, in the mov- ing papers, of adultery " on informa- tion and belief " is not sufficient where the husband denies the charge. Mori- arty v. Moriarty (Super. Ct.), 10 N. Y. Supp. 228. See also Clark v. Clark, 7 Robt. (N. Y.) 284. Divorce in Another State. Where an answer sets up a prior divorce in an- other state and issue is joined, no temporaty alimony can be granted until the determination of this issue. Kiefer v. Kiefer (Colo. App., 1894), 36 Pac. Rep. 621. 3. Jenkins v. Jenkins 69 Ga. 483; Wright v. Wright, i Edw. Ch. (N. Y.) 62; Story -v. Story, Walk. Ch. (Mich.) 421; Roseberry v. Roseberry, 17 Ga. 139- Where, on a motion for alimony pending a bill for divorce, the husband moved to continue, showing that a material witness was absent without his consent, that he had been sub- poenaed, etc., it was error to re- fuse the continuance on the ground that the granting of alimony pendente lite was wholly in the discretion of the court, and that there was no necessity for the presence of all the witnesses. Wardlaw v. Wardlaw, 39 Ga. 53. Where Husband Complainant. It seems he will not be heard as to wife's means or his own. Mangels v. Man- gels, 6 Mo. App. 481; Thayer v. Thayer, 9 R. I. 377; Bird v. Bird, i Lee 572. But see Jenkins -v. Jenkins. 69 Ga. 483. Affidavits Taken Before Husband's So- licitor. Where affidavits in support of the defense set up to an application for temporary alimony are sworn to before the solicitor of the party offer- ing them, they cannot be read in evi- dence. Pullen v. Pullen (N. J., 1889), 17 Atl. Rep. 310. 4. Finkelstein v. Finkelstein (Mont.. 1894), 34 Pac. Rep. 1090; Bardin v. Bardin (S. Dak., 1893), 56 N. W. Rep. 1069; Vandegrift v. Vandegrift, 30 N. J. Eq. 76 ; and cases cited ante, p. 422, notes 6-9. It was held in Walsh v. Walsh (Buf- falo Super. Ct.), 24 N. Y. Supp. 335, that where the marriage was denied, but there was yet sufficient evidence for a jury to find it if it had been 425 Procedure. ALIMONY. Evidence. done, shifts the burden of proof onto the husband to establish any affirmative defense he may have, as that she has separate prop- erty, 1 or that there was no marriage. 2 Only Legal Evidence is, of course, resorted to, not hearsay. 3 Decision on Affidavits. The case cannot be decided on its merits on mere affidavits. 4 Unaided Admissions. The doctrine which makes mere unaided ad- missions of a party to a divorce suit inadmissible as evidence does not apply to statements relating to the property of the parties. 5 Reference. Where the question of the husband's faculties is re- ferred to an officer to determine the facts, the reference is in equity to a master ; 6 at law, generally to a commissioner or ref- submitted to them, temporary alimony would not be refused. So an affidavit denying the marriage does not over- come the presumption of its validity. Vincent v. Vincent, 16 Daly (N. Y.) 534- 1. Glenn v. Glenn, 44 Ark. 46. 2. Vincent v. Vincent, 16 Daly (N. Y.) 534- Where the testimony as to the mar- riage is in equipoise, and a disinter- ested witness swears that he knows the parties and was present at the ceremony, this is sufficient evidence on which to base an order for a tem- porary allowance. Smith v. Smith, 61 Iowa 138. 3. Freeman v. Freeman, 49 N. J. Eq. 102. Authority to Sue. But the court ; n its inquiry as to the authority of coun- sel to bring suit will not be restricted to strictly legal testimony, but may satisfy its conscience by the state- ments of even interested parties. Swearingen v. Swearingen, 19 Ga. 265. Motion to Vacate a Decree. On a mo- tion to vacate a decree for divorce and alimony, all relevant evidence, includ- ing evidence used on the original trial and evidence not so used, but which might have been then presented by the exercise of due diligence, is to be received. Ela v. Ela, 63 N. H. 116. Modification of Decree. When an im- portant modification of a judgment for alimony is asked and resisted, it is error to decide the matter on petition, answer, and papers, instead of a ref- erence to take testimony, or a hearing, if either party desires to introduce further evidence or to cross-examine witnesses. Bacon v. Bacon, 34 Wis. 594- Appeal. Where, if wrongly ad- mitted evidence is eliminated and what remains is sufficient to uphold the order for alimony, it will not be disturbed on appeal because such evi- dence was received. Walsh v. Walsh (Buffalo Super. Ct.), 24 N. Y. Supp. 335- 4. Wooleyz/. Wooley, 24 111. App. 431; Gruhl v. Gruhl, 123 Ind. 86, where it was said thajt "the court could deter- mine no question relating to the mer- its of the controversy except on the final trial, when ample opportunity would be afforded to examine and cross-examine witnesses. The affi- davits were mere ex parte statements limited in their compass." 5. i Bish. on M. , D. , & S. 1080. The reason ceasing, the rule also ceases; and this is probably true as regards all facts which the wife must show in order to entitle her to temporary ali- mony, so far, of course, only as the grant itself is concerned. Ante, p. 422, notes 1-9. Se I11. 402; Armstrong v. Armstrong, 35 "ill. 109; Jolliff v. Jolliff, 32 111. 527; Blue v. Blue, 38 111. 9, 87 Am. Dec. 267; Daily v. Daily, 64 111. 329; Von Glahn v. Von Glahn, 46 111. 134; Graves -v. Graves, 108 Mass. 314; Burrows -v. Purple, 107 Mass. 428; Prescott v. Prescott, 59 Me. 146; Petersine v. Thomas, 28 Ohio St. 596; Taylor v. Taylor, 93 N. Car. 418, 53 Am. Rep. 460; Bacon v. Bacon, 43 Wis. 197; Thomas v. Thomas, 41 Wis. 229; Coad v. Coad, 41 Wis. 23; Che- nault v. Chenault, 5 Sneed (Tenn.) 248; Gholston v. Gholston, 31 Ga. 265; Close v. Close, 25 N. J. Eq. 434; Boggess z/.Boggess,6 Baxt. (Tenn.)29g. 4. Taylor v. Gladwin, 40 Mich. 493; Ifert v. Ifert, 29 Ind. 473; Winemiller v. Winemiller, 114 Ind. 540. See Will- iams v. Williams, 36 Wis. 362. 5. Order must be as Prayed. Where respondent petitioned for alimony pendente lite, it was error to decree ali- mony " until the further order of the court." Heilbron v. Heilbron, 158 Pa. St. 297. But an order to pay tempo- rary alimony is not erroneous because not expressly limited to such time as the action should be pending. By necessary implication the order ceases to have any operation after the entry of judgment. Langan v. Langan, 91 Cal. 654. 428 Procedure. ALIMONY. Decree. tlioro, the decree is usually in terms until the reconciliation of the parties, 1 or until they are completely divorced.* Award During Joint Lives. And whether the divorce is a mensa et thoro or a vinculo, the award of alimony should only be made during the joint lives of the parties. 3 When Allowance Commences. Where permanent alimony takes the form of a periodic allowance, the decree usually directs that it shall run from the date of the final decree, 4 though sometimes it runs from the filing of the bill, when this is just under the circumstances. 5 1. Rogers v. Vines, 6 Ired. (N. Car.) 293; Tiffin v. Tiffin, 2 Binn. (Pa.) 202; Lockwood v. Krum, 34 Ohio St. 2. Maintenance. In this connection the cases on maintenance may be referred to where the practice in making the de- cree is the same. Wallingsford v. Wal- lingsford, 6 Har. & J. (Md.) 485; Lock- ridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52; ante, p. 410, note 3. 2. Blaker v. Cooper, 7 S. & R. (Pa.) 500; Smith v. Smith, 3 S. & R. (Pa.) 250. 3. Pearce z/. Pearce (Ky., 1891), 16 S. W. Rep. 271; Francis v. Francis, 31 Gratt. (Va.) 283; Gaines v. Gaines, 9 B. Mon. (Ky.) 299, 48 Am. Dec. 425; Rogers v. Vines, 6 Ired. (N. Car.) 293; Casteelz/. Casteel, 38 Ark. 477; Dewees v. Dewees, 55 Miss. 315, where it was said that alimony should be decreed, not "during the natural life of the wife," but until the dissolution of the marriage by the death of either party; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52 ; Wallingsford v. Wallingsford, 6 Har. & J. (Md.)48s; Knapp -v. Knapp, 134 Mass. 353. In Lennahan v. O'Keefe, 107 111. 620, it was said : '* In the absence of lan- guage showing unequivocally that the intention was to bind the heir by such a decree, we are of opinion that it does not dg so, but that its life terminates with the death of the defendant." Presumption. The decree is pre- sumed to be for the joint lives of the parties. Field v. Field, 66 How. Pr. (N. Y. Supreme Ct.) 346, 15 Abb. N. Cas. (N. Y.) 434, disapproving Burr v. Burr, 10 Paige (N. Y.) 20. Contra. But where the decree ex- pressly awards alimony to continue during the natural life of wife, it seems the award will be sustained. Stratton v. Stratton, 77 Me. 373, 52 Am. Rep. 779; Miller v. Miller, 64 Me. 489; Burr v. Burr, 10 Paige (N. Y.) 20, 7 Hill (N. Y.) 207; Carson v. Murray, 3 Paige (N. Y.)483; Lennahan v. O'Keefe, 107 111. 620: Storey v. Storey, 125 111. 608, 8 Am. St. Rep. 417, reversing 23 111. App. 558; Ex p. Hart, Q4Cal. 254. And, of course, it may be so under a statute. Smythe v. Banks, 73 Ga. 303. No Period Specified. A decree award- ing alimony is not void where no period is specified during which it shall be paid. Ex p. Hart, 94 Cal. 254. 4. Durantz/. Durant, I Hagg. Ecc. 528, 3 Eng. Ecc. 231; Kempe v. Kempe, i Hagg. Ecc. 532, 3 Eng. Ecc. 233; Cooke v. Cooke, 2 Phillim. 40 ; Soules v. Soules, 3 Grant's Ch. (U. C.) 113 ; Ricketts v. Ricketts, 4 Gill (Md.) 105; Holmes v. Holmes, 29 N. J. Eq. 9. 5. Forrest v. Forrest, 25 N. Y. 501, 6 Duer (N. Y.) 102 ; Burr v. Burr, 10 Paige (N. Y.) 20, 7 Hill (N. Y.) 207. Where the wife was adjudged en- titled to a divorce, but the question of alimony was reserved, it was held that the husband's liability for temporary alimony, which had previously been granted, continued until the decision as to permanent alimony. Ex p. Am- brose, 72 Cal. 398. Conditions. Under the English prac- tice alimony is sometimes decreed to a wife to continue dum casta et sola vixerit. But this practice is said not to obtain in the United States. 2 Bish. on M., D., & S. 1057. But see Pearce v. Pearce (Ky., 1891), 16 S. W. Rep. 271, where the allowance was made for as long as plaintiff remained a single woman. And see Storey -v. Storey, 125 111. 608, 8 Am. St. Rep. 417, a case of decree for alimony entered upon consent, allowance to continue while plaintiff remained single. In Middleton v. Middleton, 18 111. App. 472, it was said that where there were articles of separation, alimony should be granted, conditioned upon the husband's failure to pay the amount agreed upon under such arti- cles. 429 Procedure. ALIMONY. Decree. b. MODIFICATION. Decrees for alimony are, and, on principle, should be, subject to change or modification as circumstances may require. 1 Temporary Alimony may be increased or diminished at any time during the pendency of the suit. 2 Permanent Alimony. And this is SQ also in the case of permanent alimony, where the divorce granted is a mensa et thoro? or the decree is alimony without divorce ; 4 but not, it seems, where the divorce is a irinculof unless this right has been re- served by the court in the decree itself 6 or is given by statute, which it generally is. 7 maintenance is made a lien on more land than is necessary to secure pay- ment, it will be modified on application. Thomas v. Thomas, 44 111. App. 604. 5. Sampson v. Sampson, 16 R. I. 456; Sammis v. Medbury, 14 R. I. 214; Mitchell v. Mitchell, 20 Kan. 665; Stratton v. Stratton, 73 Me. 481; Smith v. Smith, 45 Ala. 264; Fries v. Fries, I McArthur (D. C.) 291; Kerr v. Kerr, 59 How. Pr. (N. Y. C. PI.) 255; Shep- herd v. Shepherd, i Hun (N. Y.) 240; Pertersine v. Thomas, 28 Ohio St. 596; Hardin v. Hardin, 38 Tex. 616; Park v. Park, 80 N. Y. 156, affirming 18 Hun (N. Y.)466. Principle. The principle on which this doctrine rests is the same that prevents the granting of alimony after final decree in an action completely divorcing the parties. Kamp v. Kamp, 59 N. Y. 212; ante, p. 414, and cases there cited. 6. Olney v. Watts, 43 Ohio St. 499; Pearce v. Pearce (Ky., 1891), 16 S. W. Rep. 271; Beck v. Beck, 43 N. J. Eq. 668 ; Fries v. Fries, i McArthur (D. C.) 291; Petersine v. Thomas, 28 Ohio St. 596; Williams v. Williams, 29 Wis. 517; Severn v. Severn, 7 Grant's Ch. (U. C.) 109; Bennett v. Bennett, Deady (U. S.) 299. See also Lockridge v. Lockridge, 3 Dana (Ky.) '28, 28 Am. Dec. 52; Sampson v. Sampson, 16 R. I. 456. Yet it was held in Cullen v. Cullen. 55 N. Y. Super. Ct. 346, that even where a decree refusing alimony was only a mensa et thoro, and expressly reserved the right to the court to make future modifications of it for the sup- port of the wife as circumstances should require, this could not be done; though it is different where the defend- ant consents. Stahl v. Stahl, 59 Hun (N. Y.) 621, 12 N. Y. Supp. 854. 7. Kempster v. Evans, 81 Wis. 247 ; Bacon v. Bacon, 43 Wis. 197; Hopkins Maintenance for Child. A divorce de- cree which gives the wife alimony and the custody of a child will not be re- versed because it does not specify the amount intended for the wife and child respectively, although it is proper to do so. Johnson v. Johnson, 36 111. App. 152, affirmed 'in 125 111. 510. Arrears of Alimony. A decree of di- vorce should not direct payment by the defendant of arrears of alimony previously ordered. They should be enforced by plaintiff in the ordinary way. Hoffman v. Hoffman, 55 Barb. (N. Y.) 269. As to arrears of alimony generally, see Am. & Eng. Ency. Law, tit. ALIMONY. 1. By alimony is, of course, here meant the alimony of the unwritten law, not the statutory alimony granted on total dissolution of the marriage bond. Smith v. Smith, 45 Ala. 264. 2. Cox v. Cox, 3 Add. Ecc. 276, 2 Eng. Ecc. 531; McGee v. McGee, 10 Ga. 477; Amos v. Amos, 4 N. J. Eq. 171; Sigel v. Sigel, 28 Abb. N. Cas. (N. Y. Super. Ct.) 308; King v. King, 38 Ohio St. 370; Moe v. Moe, 39 Wis. 308; Simonds v. Simonds (Supreme Ct.) 10 N. Y. Supp. 606; Williams v. Williams, 29 Wis. 517; Waters v. Waters, 49 Mo. 385. 3. Rogers v. Vines, 6 Ired. (N. Car.) 293; Taylor v. Taylor, 93 N. Car. 418, 53 Am. Rep. 460; Smith v. Smith, 45 Ala. 264; Miller v. Miller, 6 Johns. Ch. (N. Y.) 93; Sloan v. Cox, 4 Hayw. (Tenn.) 75; Otway v. Otway, 2 Phil- lim. 109, i Eng. Ecc. 203; De Blaquiere v. De Blaquiere, 3 Hagg. Ecc. 322, 5 Eng. Ecc. 126; Saunders v. Saunders, i Swab. & T. 72; Bursler v. Bursler, 5 Pick. (Mass.) 427; Holmes v. Holmes, 4 Barb. (N. Y.) 295; Barber v. Barber, i Chand. (Wis.) 280. 4. Beck v. Beck, 43 N. J. Eq. 668; cases cited ante, p. 411, note i. Lien on Land. Where a decree for 43 Procedure. ALIMONY. Decree. When Power Exercised. But this power will only be exercised where a change of circumstances in the parties is clearly shown, 1 or on the presentation of newly discovered evidence of which the peti- tioner was excusably ignorant. 2 v. Hopkins, 40 Wis. 462; Campbell v. Campbell, 37 Wis. 206; Blake v. Blake, 75 Wis. 339, 68 Wis. 303 ; Coad v. Coad, 41 Wis. 23 ; Williams v. Williams, 29 Wis. 517; Thomas v. Thomas, 41 Wis. 229; Bennett v. Bennett, Deady (U. S.) 299; Robbins v. Robbins, 101 111. 416; Lennahan v. O'Keefe, 107 111. 620; Stillman v. Stillman, 99 111. 196, 39 Am. Rep. 21; Cole v. Cole, 142 111. 19, affirming 35 111. App. 544; Foote v. Foote, 22 111. 425; Wheeler v. Wheeler, 18 111. 39; Alderson v. Alderson, 84 Iowa 198; Galusha v. Galusha, 138 N. Y. 272; Richmond v. Richmond, 2 N. J. Eq. 90; Amos v. Amos, 4 N. J. Eq. 171; Sheafe v. Sheafe, 36 N. H. 155; Sparhawk v, Sparhawk, 120 Mass. 390; Graves v. Graves, 108 Mass. 314; Albee v. Wyman, 10 Gray (Mass.) 222; Waters v. Waters, 49 Mo. 385; Olney v. Watts, 43 Ohio St. 499; Ellis v. Ellis, 13 Neb. 91; Bauman v. Bauman, 18 Ark. 320, 68 Am. Dec. 171; Bowman v. Worthington, ^24 Ark. 522; Perkins v. Perkins, 12 Mich. 456; Goodmans. Goodman. 26 Mich. 417; McGee v. McGee, 10 Ga. 477; Wilde v. Wilde, 36 Iowa 319; Shaw v. McHenry, 52 Iowa 182; Fisher v. Fisher, 32 Iowa 20; Blythe v. Blythe, 25 Iowa 266; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52; Call v. Call, 65 Me. 407; Weld v. Weld, 28 Minn. 33; Semrow v. Semrow, 23 Minn. 214; Sheafe v. Sheafe, 36 N. H. 155; Buck- minster v. Buckminster, 38 Vt. 248, 88 Am. Dec. 652. In Campbell v. Campbell, 37 Wis. 206, it was held that the court could not by any form of judgment divest itself of the authority given it by statute to revise such judgment. So also in Thomas v. Thomas, 41 Wis. 229. And an annual allowance is not a final distribution of the estate of the parties, although the decree may de- clare it to be so. Kempster v. Evans, 81 Wis. 247, 15 L. R. A. 391. See Blake v. Blake, 75 Wis. 339, 68 Wis. 303. But a decree, in so far as it vests title to real estate in the wife, is final and cannot be modified after the term of court in which it was given has closed. Webster v. Webster, 64 Wis. 438. See Shepherd v. Shepherd, i Hun (N. Y.) 240, affirmed in 58 N. Y. 644; Forrest v. Forrest, 3 Bosw. (N. Y.)66i. Presumption. But a decree for ali- mony is not temporary in its character, and the presumption that it remains unchanged can only be overcome by record evidence. Bennett v. Bennett, Deady (U. S.) 299. Agreement. And an agreement is no bar to the modification of a judgment. Blake v. Blake, 75 Wis. 339,68 Wis. 303. See Galusha v. Galusha, 138 N.Y. 272. 1. Rogers v. Vines, 6 Ired. (N. Car.) 293; Graves v. Graves, 108 Mass. 314; Simonds v. Simonds (Supreme Ct.), 10 N. Y. Supp. 606; Blake v. Blake, 75 Wis. 339, 68 Wis. 303; Cole v. Cole, 142 111. 19, 35 111. App. 544; Rich- mond v. Richmond, 2 N. J. Eq. 90; Wilde v. Wilde, 36 Iowa 319; Semron ' v. Semron, 23 Minn. 214; Perkins v. Perkins, 12 Mich. 456; Goodman v. Goodman, 26 Mich. 417; Petersine z>. Thomas, 28 Ohio St. 596; De Blaquiere v, De Blaquiere, 3 Hagg. Ecc. 322, 5 Eng. Ecc. 126; Fisher -v. Fisher, 32 Iowa 20; Halsted v. Halsted, 5 Duer(N. Y). 659; Holmes v. Holmes, 4 Barb. (N.Y.) 295; Buckminster v. Buckminster, 38 Vt. 248, 88 Am. Dec. 652; Bowman v. Worthington, 24 Ark. 522; Stillman v. Stillman, 99 111. 196, 39 Am. Rep. 21; Albee v. Wyman, 10 Gray (Mass.) 222; Fisher v. Fisher, 2 Swab. & T. 411; Sidney v. Sidney, 4 Swab. & T. 180. See also Sloan v. Cox, 4 Hayw. (Tenn.) 75; Forrest v. Forrest, 3 Bosw. (N. Y.) 661. And a petition to modify a decree which does not show this change is demurrable. Reid v. Reid, 74 Iowa68i. Agreement. A petition may be modi- fied by agreement, and the agreement upheld. Allison v. Allison (S. Dak., 1894), 58 N. W. Rep. 563. Death of Child. A decree for per- manent alimony for the support of wife and child will not be reformed and the amount reduced on the death of the child, where the necessities of the wife remain the same as before the death of the child; and in such case she will be allowed a counsel fee in resisting the application for such reformation. Thurston v. Thurston, 38 111. App. 464. 2. Straus v. Straus (Supreme Ct.), Procedure. ALIMONY. Decree. Application for Modification. Generally an application for the modifi- cation of a decree for alimony should not be made by a new bill, 1 but by summary motion or petition,* or an application for an order to show cause, filed in the original cause; 3 and it must set out fully the facts relied on. 4 c. ENFORCING DECREE By What Tribunal. A decree for alimony 14 N. Y. Supp. 671; Semron v. Sem- ron, 23 Minn. 214. Where Husband is Unable to Fay the decree should be modified. State v. Second Judicial Dist. (Mont., 1894), 36 Pac. Rep. 757. Or where a divorced wife marries again. McCracken v. Swartz, 5 Oregon 62. 1. Snover v. Snover, 13 N. J. Eq. 261; Paff v. Paff, Hopk. (N. Y.) 584, where the court said: "When any difficult question arises upon such an application, the court may direct that a bill be filed, or may award an issue for a more complete investigation of the case. But it cannot be tolerated that either party should, of course, and without leave of the court, insti- tute a new suit in full form for the purpose of varying a final decree of this nature. If such bills were per- mitted upon every change in the cir- cumstance of a party, they might be- come very oppressive; and such a practice is wholly unnecessary. Ap- plications to vary allowances have hitherto been made to this court by motion or petition, and this practice must be enforced." But it was said in Jordan v. Jordan, 53 Mich. 550, a case in which neither the libel nor the decree made any mention of alimony, that the decree could not be amended by adding a reference to take proofs concerning alimony, but that the proper remedy, if there was any, was by supplemental bill in the nature of a bill of review. Where Allowance Inadequate when granted, the remedy is by appeal, not by bill of review. Bauman v. Bauman, 18 Ark. 320, 68 Am. Dec. 171. 2. McPike v. McPike, 10 111. App. 332; Neil v. Neil, 4 Hagg. Ecc. 273, Cox v. Cox, 3 Add. Ecc. 276; Perkins v. Perkins, 12 Mich. 456; Snover v. Snover, 13 N. J. Eq. 261; Paff v. Paff, Hopk. (N. Y.) 584; Rogers v. Rogers (Ohio, 1894), 36 N. E. Rep. 310; Bau- man v. Biuman, 18 Ark. 320, 68 Am. Dec. 171. Upon a petition to make absolute a divorce from bed and board, the court may increase the alimony originally granted without a distinct petition therefor. Graves v. Graves, 108 Mass. 314; Sparhawk v. Sparhawk, 120 Mass. 39- 3. Wade v. Wade (Cal., 1892), 31 Pac. Rep. 258. 4. Perkins v. Perkins, 12 Mich. 456; Saunders v. Saunders, I Swab. & T. 72; Shirley v. Wardropp, I Swab. & T. 317- Evidence. Facts proved in 'evidence but not made ground for relief in the petition cannot be considered by the court in reaching its conclusion. Per- kins v. Perkins, 12 Mich. 456. Where the wife did not oppose the reduction of alimony, it has been made on motion founded on the mere affi- davit of the husband. Cox v. Cox, 3 Add. Ecc. 276. But where an impor- tant modification of a judgment is asked and resisted, it is error to decide the matter upon petition, answer, and accompanying papers, instead of a reference to take testimony or a hear- ing in court, if either party wishes to introduce further evidence or to cross- examine the witnesses. Bacon v. Bacon, 34 Wis. 594. Venue. A petition for a change of alimony is a "suit" within the mean- ing of a statute which provides for a change of venue; and there is no force in the objection that this proceeding is a mere adjunct of divorce, and that the court to which it may be removed will have nothing on which to base its action, as records in divorce cases are not removable; since if any records are needed, transcripts are obtainable under statutory provisions. McPike v. McPike, 10 111. App. 332. Contra, Hopkins v. Hopkins, 40 Wis. 462; Bacon v. Bacon, 34 Wis. 594. When Power to Alter Exercised. The statutory power of a court to alter an allowance of alimony "from time to time " may be exercised after the term at which the decree for alimony was rendered. Cole v. Cole, 142 111. 19. 432 Procedure. ALIMONY. Deeree. can be enforced within the state in which it is granted only by the tribunal which granted it. 1 in other states. But we have seen before that such a decree is within the " full faith and credit " clause of the Constitution of the United States, and can be enforced in a state other than that in which it was passed, 2 by a suit in equity 3 or an ordinary action 1. Allen v. Allen, 100 Mass. 373; Van Buskirk v. Mulock, 18 N. J. L. 184; Barber v. Barber, i Chand. (Wis.) 280; Guenther v. Jacobs, 44 Wis. 354. See also Hansford v. Van Auken, 79 Ind. 302. No other court, without leave of the court which has granted the divorce, can take jurisdiction of an action on the bond given to secure the payment of alimony awarded by the divorce court. Guenther v. Jacobs, 44 Wis. 354. The general question of jurisdiction is somewhat fully discussed in this case, the court concluding as follows: " In all ordinary circumstances, there- fore, the remedy to enforce the pay- ment of alimony is exclusively in the court which grants it. The cases, with rare exceptions, recognize the ex- clusive jurisdiction of the court grant- ing a divorce to enforce its own judgment for alimony. Campbell v. Campbell, 37 Wis. 206; Bacon v. Bacon, 43 Wis. 197; Barber v. Barber, 2 Pin. (Wis.) 297; Allen v. Allen, 100 Mass. 373; Fischli v. Fischli, i Blackf. (Ind.) 360, 12 Am. Dec. 251; De Blaquiere v. De Blaquiere, 3 Hagg. Ecc. 322; Van- dergucht v. De Blaquiere, 8 Sim. 315. This doctrine is too well settled in this court to admit of question here." Eeason of Rale. The reasons on which this principle is sustained seem to be the general doctrine that an action at law will not lie for the recov- ery of money directed to be paid by the decree of a court of equity, Hugh v. Higgs, 8 Wheat. (U. S.) 697; Van Buskirk v. Mulock, 18 N. J. L. 184; or that an alimony decree has not the force of a judgment and cannot there- fore be the subject of an action at law, Barber v. Barber, i Chand. (Wis.) 280; or that a decree for alimony is not final in its character, Guenther v. Jacobs, 44 Wis. 354; Allen v. Allen, TOO Mass. 373. But an action may be maintained in one county upon a judgment rendered in another. Darrow v. Darrow, 43 Iowa 411. 2, Ante, p. 416, notes I, 2; Borden v. Fitch, 15 Johns. (N. Y.) 121; Rogers v. Rogers, 15 B. Mon. (Ky.) 364; Har- rison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227; Nunn v. Nunn, 8 L. R. Ir. 298; Allen -v. Allen, 100 Mass. 373; Stewart v. Stewart, 27 W. Va. 167; Rigney v. Rigney (Supreme Ct.), 6 N. Y. Supp. 141; Wood v. Wood (C. PL), 28 N. Y. Supp. 154; and particu- larly Dow v. Blake, 148 111. 76. The reasons offered in support of the rule that a decree for alimony, within the state in which it was grant- ed, can only be enforced by the court awarding it would, of course, in strict logic, apply with equal force to suits brought for the purpose of enforcing foreign judgments or decrees, and have, in fact, been so applied. Van Buskirk v. Mulock, 18 N. J. L. 184; Barber v. Barber, I Chand. (Wis.) 280. But, by the great weight of authority, the rule is not generally observed in the latter class of cases, probably on the ground of preventing a failure of justice which would otherwise fre- quently occur. See Allen v. Allen, 100 Mass. 373, where the court said: " It is manifest that a foreign and a domestic decree stand on a very dif- ferent footing in respect to the appro- priate measures for their enforcement. It may be that, within the jurisdiction of a chancery or ecclesiastical court, its powers and processes to compel obedience to its own decrees are so ample and potent that other tribunals will not entertain independent suits for that purpose; while, in the case of a foreign court or one in another state, the remedy of a suit to enforce such a decree may be necessary to prevent failure of justice." What Relief Granted. But in an ac- tion on a foreign judgment no other relief can be had than a recovery for past-due alimony. In such an action there is no jurisdiction in equity to sequestrate defendant's property or compel him to give security for future payments. Wood v. Wood (C. PI.), 28 N. Y. Supp. 154. 3. Rogers v. Rogers, 15 B. Mon. (Ky.) 364; Stewart v. Stewart, 27 W. Va. 167. i Encyc. PI. & Pr. 28. 433 Procedure. ALIMONY. Decree. at law. 1 United states Courts. It can also be enforced on the equity side of the United States courts where the parties reside in different states. 2 The Methods Employed to enforce the alimony decree or order vary in the different states according as statutes provide or the usual practice of the court authorizes. 3 If the action is in chancery, then as an ordinary decree, or by other modes consistent with chancery practice, 4 or by supplemental proceedings. 5 And the court often has the right of election between different methods. 6 In some states an action of assumpsit has been sustained ; T in some, debt, 8 or an ordinary suit on a judgment, 9 or other similar action. 10 The following are the methods principally in use in this coun- try : the writ of scire facias ?* which method is sometimes preferred 1. Traylor v. Richardson, 2 Ind. App. 452; Allen v. Allen, 100 Mass. 373. In the following cases debt was sustained: Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227; Dow v. Blake, 148 111. 76. Compare Stewart v. Stewart, 27 W. Va. 167; Rigney v. Rigney (Supreme Ct.), 6 N. Y. Supp. 141. The Terms of the Decree, and whether the court is one of law or equity, may perhaps affect the question. Chestnut v. Chestnut, 77 111. 346. 2. Barber v. Barber, 21 How. (U. S.) 582. See also Cheever v. Wilson, 9 Wall. (U. S.) 108; Bennett v. Ben- nett, Deady (U. S.) 299, ante, p. 416. 3. Prescott v. Prescott, 59 Me. 146; Coughlin v. Ehlert, 39 Mo. 285; Bar- ker v. Dayton, 28 Wis. 367; Damon v. Damon, 28 Wis. 510. 4. Becker v. Becker, 15 111. App. 247; Blake v. People, 80 111. n; Coughlin v. Ehlert, 39 Mo. 285; Da- mon v. Damon, 28 Wis. 510; Casteel v. Casteel, 38 Ark. 477; Burrows v. Pur- ple, 107 Mass. 428; Slade v. Slade, 106 Mass. 499; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52; Spar- hawk v. Sparhawk, 120 Mass. 390. 5. Barker v. Dayton, 28 Wis. 367. Temporary Alimony in a suit by di- vorced wife to enforce a decree for alimony cannot be granted. McQuien v. McQuien, 61 How. Pr. (N. Y. C. PI.) 280. So also it will be refused in a suit to set aside a decree altogether. Wilson v. Wilson, 49 Iowa 544. 6. Becker v. Becker, 15 111. App. 247; Blake v. People, 80 111. n; Waters v. Waters. 49 Mo. 385; Bouslough v. Bouslough, 68 Pa. St. 495; Sheafe v. Laighton, 36 N. H. 240; Sheafe v. Sheafe, 36 N. H. 155; Staples v. Sta- ples, 87 Wis. 592; Wightman v. Wight- man, 45 111. 167. 7. Wheeler v. Wheeler, i Dane Ab. (Mass.) 358; Davol v. Davol, 13 Mass. 264. 8. Stratton v. Stratton, 77 Me. 373, 52 Am. Rep. 779; Clark v. Clark, 6 W. & S. (Pa.) 85; to which non-assumpsit is not a proper plea. Lancaster v. Lancaster, 29 111. App. 510; Howard v. Howard, 15 Mass. 196, overruled together with Wheeler v. Wheeler, i Dane Ab. (Mass.) 358, and Davol v. Davol, 13 Mass. 264, by Allen v, Allen, 100 Mass. 373. 9. Hansford v. Van Auken, 79 Ind. 302; Blecknell v. Blecknell, no Ind. 42; where it was said that a judgment for alimony was a debt of record and sufficient to support an action in the same or a different court from that in which it was rendered, even though execution would collect the same. 10. Bates v. Bates, 74 Ga. 105. Sequestration is sometimes resorted to. Clinton v. Clinton, L. R. i P. & M. 215; Dent v. Dent, L. R. i P. & M. 366; Sansom v. Sansom, 4 P. D. 69. And where the husband is complain- ant the payment of temporary alimony is often enforced by refusing to hear the cause until alimony is paid, Bird v. Bird, i Lee 572, 5 Eng. Ecc. 455; or by denying the husband a decree absolute, Latham v. Latham, 2 Swab. & T. 299. 11. Morton z/.Morton, 4 Cush. (Mass.) 518; Chestnut v. Chestnut, 77 111. 346; 434 Procedure. ALIMONY. Decree. to any other, 1 fiere facias? attachment of property, 3 or exe- cution generally. 4 li; Dinet v. Eigenmann, 80 111. 274; Yelton v. Handley, 28 111. App. 640; Blake v. Blake, 80 111. 523. Massachusetts. Foster v. Foster, 130 Mass. 189; Newcomb v. Newcomb, 12 Gray (Mass.) 28; Orrok v. Orrok, I Mass. 341; Burrows v. Purple, 107 Mass. 428; French v. French, 4 Mass. 587; Chase v. Chase, 105 Mass. 385; Downs v . Flanders, 150 Mass. 92; Slade v. Slade, 106 Mass. 499. Missouri. Waters v. Waters, 49 Mo. 385; State v. St. Louis Court, 99 Mo. 216; Coughlin -v. Ehlert, 39 Mo. 285; Schmidt v. Schmidt, 26 Mo. 235. Iowa. Daniels v. Lindley, 44 Iowa 367; Allen v. Allen, 72 Iowa 502. Ohio. Wooley v. Wooley, Wright (Ohio) 245; Piatt v. Piatt, 9 Ohio 37; Olin v. Hungerford, 10 Ohio 268. California. Robinson v. Robinson, 79 Cal. 511; Van Cleave v. Bucher, 79 Cal. 600. Michigan. Taylor v. Glad win, 40 Mich. 232; Haines v. Haines, 35 Mich. 138; Norths. North, 39 Mich. 67. Maine. Call v. Call, 65 Me. 407; Russell v. Russell, 69 Me. 336; Pres- cott v. Prescott, 59 Me. 146. New Hampshire. Sheafe v. Laigh- ton, 36 N. H. 240; Sheafe v. Sheafe, 36 N.H.I55- Other States. Fletchers. Henley, 13 La. Ann. 150; Casteel v. Casteel, 38 Ark. 477; Bouslough v. Bouslough, 68 Pa. St. 495; Gibson v. Patterson, 75 Ga. 549; Weaver v. Weaver, 7 Utah 296; Andrew v. Andrew, 62 Vt. 495; Staples v. Staples, 87 Wis. 592. But see Groves's Appeal, 68 Pa. St. 143, where it was held that an order for tempo- rary alimony was not such a judgment that execution could issue, nor a "de- cree in equity for the payment of money," within the meaning of a statute making such decrees liens upon real estate, the court saying that the remedy for enforcement was by attachment. In Whose Name Execution Issues. Execution can be issued in the name of the plaintiff alone. Robinson v. Robin- son, 79 Cal. 511. Order to Show Cause. Execution is not void because issued without an order to show cause why defendant had not obeyed the order of court. Van Cleave v. Bucher, 79 Cal. 600. But see Slade v. Slade, 106 Mass. 499; McCracken v. Swartz, 5 Oregon 62; Slade v. Slade, 106 Mass. 499; Knapp v. Knapp. 134 Mass. 353. See for what is necessary to be set out in the declaration or verified petition in a proceeding in the nature of scire facias, McCracken v. Swartz, 5 Oregon 62. 1. As where execution is desired against the estate of a deceased per- son for arrears of alimony. Knapp v. Knapp, 134 Mass. 353. Massachusetts. This method seems to be popular in this state. See for an elaborate discussion of the reasons therefor, Morton v. Morton, 4 Cush. (Mass.) 518. But it is not the exclu- sive remedy, the court saying in Slade v. Slade, 106 Mass. 499, that "a petition is usually preferable to a sci. fa. because the proceeding is more speedy and flexible." See Downs v. Flanders, 150 Mass. 92. Amount Must Be Certain. But a sci. fa. will not lie upon the record of an order for the payment of alimony pending a suit for divorce when a re- sort to evidence dehors the record would be necessary to ascertain the amount due. Chestnut v. Chestnut, 77 HI- 346. 2. Bouslough v. Bouslough, 68 Pa. St. 495; Gibson v. Patterson, 75 Ga. 549; preceded by an order to show cause, Hewitt v. Hewitt, I Bland (Md.) 101; and the petition for the writ need not state the amount of ali- mony due. An allegation that none has been paid is sufficient. It is also said that there is no authority for the issuance of a ca. sa. Elmer v. Elmer, 150 Pa. St. 205. But see Goss T/. Goss, 29 Ga. 109. 3. Whartonz/. Wharton, 57 Iowa 696; Goss v. Goss, 29 Ga. 109; Bouslough v. Bouslough, 68 Pa. St. 495; Daniels v. Lindley, 44 Iowa 567; Waters v. Waters, 49 Mo. 385. But where an attachment has been laid by the wife on property of the husband before the decree of divorce, the decree cannot direct it should date back and become a lien on said property from the date of the attachment, to the exclusion of the rights of intervening judgment creditors. Daniels v. Lindley, 44 Iowa 467. 4. Illinois. Becker v. Becker, 15 111. App. 247, Blake v. People, 80 111. 435 Procedure. ALIMONY. Decree. The decree may also be enforced by sequestration of the hus- band's property, 1 or by the appointment of a receiver a or trustee. 3 Another method frequently employed, at least in the case of temporary alimony, to enforce payment of the order or decree, is that of taking away the privileges in a cause 4 by dis- missing the plaintiff's bill, 5 or refusing to proceed with the trial, 6 or striking the answer of the defendant from the files and pro- ceeding with the case ex parte? if the order or decree is not com- Newcomb v. Newcomb, 12 Gray (Mass.) 28. Agreement. The court cannot order execution unless there is a decree for alimony. It cannot issue on a mere agreement. Brigham v. Brigham, 147 Mass. 159. 1. Becker v. Becker, 15 111. App. 247; Blake v. People, 80 111. n ; Blake v. Blake, 80 111. 523 ; Isaacs v. Isaacs, 61 How. Pr. (N. Y. C. PI.) 369; Wight- man v. Wightman, 45 111. 167 ; Mc- Quien v. McQuien, 61 How. Pr. (N. Y. C. PI.) 280; Gane -v. Gane, 45 N. Y. Super. Ct. 355 ; Lockridge v. Lock- ridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52 ; Guenther v. Jacobs, 44 Wis. 354 ; Coughlin v. Ehlert, 39 Mo. 285 ; For- rest v. Forrest, 9 Bosw. (N. Y.) 686; Stratton v. Stratton, 77 Me. 373, 52 Am. Rep. 779 ; Hills v. Hills, 76 Me. 486; Donnelly v. Shaw, 7 Abb. N. Cas. (N. Y. Supreme Ct.) 264; State v. St. Louis Court, 99 Mo. 216. Does Not Supersede Contempt. Seques- tration does not supersede contempt proceedings, the court saying in O'Cal- laghan v. O'Callaghan, 69 111. 552 : "But the sequestration of property was not intended to supersede pro- ceedings by contempt, but, on the contrary, it was in aid of it [tit], and resorted to either where the contemnor could not be arrested upon process, or where, having been arrested, he re- mained in prison, without paying obe- dience to the court." Citing 2 Dan. Ch. Prac. 1046. But see Isaacs v. Isaacs, 61 How. Pr. (N. Y. C. PI.) 369- Impounding Income. Where a de- fendant who has been decreed to pay alimony in annual instalments leaves the state, so that the decree cannot be enforced by any statutory remedy, the court, in the exercise of its ordinary equitable jurisdiction, may compel the trustee of a fund held in the state for the benefit of the defendant to apply the income thereof to the satisfaction of the decree. Wetmore v. Wetmore (Supreme Ct.), 28 N. Y. Supp. 377, affirmed in 29 N. Y. Supp. 440. 2. Murray v. Murray, 84 Ala. 363 ; Barker v. Dayton, 28 Wis. 367; Holmes v. Holmes, 29 N. J. Eq. 9 ; Bergen v. Bergen, 22 111. 187; Carey v. Carey, 2 Daly (N. Y.) 424; Questel v. Questel, Wright (Ohio) 492 ; Stillman v. Still- man, 7 Baxt. (Tenn.) 186. 3. Ricketts v. Ricketts, 4 Gill (Md.) 105; Murray v. Murray, 84 Ala. 363. And see Greenland v. Brown, i Desaus. Eq. (S. Car.) 196. 4. 2 Bish. 'on M., D., & S. 1095 \ McClung v. McClung, 40 Mich. 293. 5. Casteel v. Casteel, 38 Ark. 477 ; Peel v. Peel, 50 Iowa 521; Mangels v. Mangels, 6 Mo. App. 481. But the husband's suit will not be dismissed where he gives a good ex- cuse for his default. Newhouse v. Newhouse, 14 Oregon 290. And this remedy will not be employed save in extreme cases. Peel v. Peel, 50 Iowa 521. 6. Waters v. Waters, 49 Mo. 385 ; Winter v. San Francisco, 70 Cal. 295 ; State v. St. Louis Court, 99 Mo. 216 ; Bird v. Bird, i Lee 572, 5 Eng. Ecc.. 455; Latham v. Latham, 2 Swab. & T. 299. 7. Zimmerman v. Zimmerman, T Mont. 114; Quigley v. Quigley, 45 Hun (N. Y.) 23; Brisbane v. Brisbane, 67 How. Pr. (N. Y. Supreme Ct.) 184; Walker v. Walker, 82 N. Y. 260, 59 How. Pr. (N. Y.) 476 (affirming 20 Hun (N. Y.) 400), where the court said: " We are brought to the conclu- sion that there has long been exerted by the Court of Chancery in England the power to refuse to hear the de- fendant when he was in contempt of the court by disobeying its orders, and that that power was in the courts of chancery of this country." But see contra, McCrea v. McCrea, 58 How. Pr. (N. Y. Supreme Ct.) 220 ; Gordon v. Gordon, 141 111. 160; Baily v. Baily, 69. Iowa 77. See Shaw v. Shaw, 114 111- 586. 436 Procedure. ALIMONY. Decree. plied with. 1 Attachment for Contempt. Another and by far the most common method of enforcing orders or decrees for alimony is that of attachment for contempt. 3 This proceeding being criminal in its nature, 3 the attachment, therefore, is not granted as of course, but only on proof that the defendant has been duly served with notice of the judgment or award, 4 and that payment has been 1. But this will not be done where the defendant can show a good ex- cuse for being in default. Allen v. Allen, 72 Iowa 502; Baily v. Baily, 69 Iowa 77; Cason v. Cason, 15 Ga. 405. And see Johnson v. San Francisco, 63 Cal. 578. It is only used in extreme cases. Peel v. Peel, 50 Iowa 521. Notice to the defendant's attorney is notice to the defendant, where the de- fendant had personal notice of the original order for alimony, and the modified order was made at the insti- gation of the attorney. Zimmerman v. Zimmerman, 7 Mont. 114. 2. New York. Gerard v. Gerard, 2 Barb. Ch. (N. Y.) 73; Lansing v. Lan- sing, 4 Lans. (N. Y.) 377, 41 How. Pr. (N. Y.) 248; Grimm v. Grimm, i E. D. Smith (N. Y.) 190; Strobridge v. Stro- bridge, 21 Hun (N. Y.) 288; Pritchard v. Pritchard, 4 Abb. N. Cas. (N. Y. Supreme Ct.) 298; Ford v. Ford, 10 Abb. Pr. N. S. (N. Y. Super. Ct.) 74, 41 How. Pr. (N. Y.) 169; Ryer v. Ryer, 67 How. Pr. (N. Y. Supreme Ct.) 369; Allen v. Allen, 8 Abb. N. Cas. (N. Y. Supreme Ct.) 175, 58 How. Pr. (N. Y.) 381; In re Clark, 20 Hun (N. Y.) 551; Ryckman v. Ryckman, 34 Hun (N. Y.) 235; Isaacs v. Isaacs, 61 How. Pr. (N. Y. C. PL) 369; Park v. Park, 80 N. Y. 156, affirming 18 Hun (N. Y.) 466; Mc- Quien v. McQuien, 61 How. Pr. (N. Y. C. PI.) 280; In re Sims, 57 Hun (N. Y.) 433; Winton v. Winton, 117 N. Y. 623; Holtham v. Holtham (Brooklyn City Ct.), 26 N. Y. Supp. 762; Carey v. Carey, 2 Daly (N. Y.) 424. Illinois. Wightman v. Wightman, 45 111. 167; Errissman v. Errissman, 25 111. 136; Buck v. Buck, 60 111. 105; Blake v. Blake, 80 111. 523; Andrews v. Andrews, 69 111. 609; O'Callaghan v. O'Callaghan, 69 111. 552; Becker v. Becker, 15 111. App. 247; Blake v. People, 80 111. n; Petrie v. People, 40 HI- 334- California. Galland v. Galland, 44 Cal. 475, 13 Am. Rep. 167; Ex p. Wil- son, 73 Cal. 97; Ex p. Perkins, 18 Cal. 60; Ex p. Hart, 94 Cal. 254; Ex p. Cottrell, 59 Cal. 417; Ex p. Cottrell, 59 Cal. 420; Spencer v. Lawler, 79 Cal. 215- Georgia. Pinkard v. Pinkard, 23 Ga. 286; Cason v. Cason, 15 Ga. 405; Bates v. Bates, 74 Ga. 105; Carlton v. Carlton, 44 Ga. 216; Lewis v. Lewis, 80 Ga. 706, 12 Am. St. Rep. 281; Gib- son v. Patterson, 75 Ga. 549. Michigan. Potts v. Potts, 68 Mich. 492; Steller v. Steller, 25 Mich. 159; Haines v. Haines, 35 Mich. 138; North v. North, 39 Mich. 67; In re Bissell, 40 Mich. 63; Brown v. Brown, 22 Mich. 299; Ross v. Griffin, 53 Mich. 5; Filer v. Filer, 77 .Mich. 469. Pennsylania. Elmer v. Elmer, 150 Pa. St. 205; Groves's Appeal, 68 Pa. St. 143; Ormsby v. Ormsby, i Phila. (Pa.) 578; Waldron v. Waldron, 55 Pa. St. 231; Wallen v. Wallen, n Pa. Co. Ct. Rep. 41. Ohio. Stewart v. Stewart, 23 Wkly. L. Bull. (Ohio) 38; Hand v. Hand, 25 Wkly. L. Bull. (Ohio) 214. Massachusetts. Foster v. Foster, 130 Mass. 189; Chase v. Ingalls, 97 Mass. 524- North Carolina. Wood v. Wood, Phil. (N. Car.) 538 ; Zimmerman v. Zimmerman, 113 N. Car. 432. New Hampshire. Sheafe v. Laigh- ton, 36 N. H. 240; Sheafe v. Sheafe, 36 N. H. 155. Maine. Dwelly v. Dwelly, 46 Me. .377; Russell v. Russell, 69 Me. 336. Vermont. Andrew v. Andrew, 62 Vt. 495; Curtis v. Gordon, 62 Vt. 340. Other States. Murray v. Murray, 84 Ala. 363; Casteel v. Casteel, 38 Ark 477; Lyon v. Lyon, 21 Conn. 185; Twing v. O'Meara, 59 Iowa 326; In re Fanning, 40 Minn. 4; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52; O'Haley v. O'Haley, 31 Tex. 502; Purcell v. Purcell, 4 Hen. & M. (Va.) 507; Staples v. Staples, 87 Wis. 592; State v. Second Judicial Dist. Ct. (Mont., 1894), 36 Pac. Rep. 757. 3. State v. Dent, 29 Kan. 416. 4. Ryckman v. Ryckman, 32 Hun 437 Procedure. ALIMONY. Decree, specifically demanded and refused ; * unless there has been a prior refusal to pay, which renders a formal demand unnecessary. 2 But the refusal must be wilful, 3 amounting to " contemptuous dis- obedience;" 4 and there will be no contempt and the attachment will not be granted where the defendant is bona fide unable to pay, 5 unless he is otherwise in fault. 6 The question of ability is one of fact, to be determined by the court on the evidence before it ; r and it seems that the burden of proof lies on the defendant to establish his poverty. 8 Application for Attachment. The attachment cannot issue on an ex~ parte application, even though the decree provides for it, 9 as the defendant is generally entitled to notice of some kind, commonly an order to show cause. 10 (N. Y.) 193; Park v. Park, 80 N. Y. 156, affirming 18 Hun (N. Y.) 466; Edison v. Edison, 56 Mich. 185. And it has been held that where husband, even though he is complain- ant, has no notice of the motion for temporary alimony, an order for the same will be set aside, and that all sub- sequent proceedings based thereon are void. Sanchez v. Sanchez, 21 Fla. 346. Service of Order. Mere delivery to defaulting husband in another state of a certified copy of the order is not sufficient. Johnson v. San Francisco, 63 Cal. 578. Yet an order for alimony is not such original process as need be served within the territorial limits over which a municipal court has jurisdiction. Edison v. Edison, 56 Mich. 185. And where no copy of the order for alimony was served, but the husband was present in court when it was made, and afterwards refused to obey it, this is sufficient. Ex p. Cottrell, 59 Cal. 417; Ex. p. Cottrell, 59 Cal. 420. 1. Ryckman v. Ryckman, 32 Hun (N. Y.) 193; Gane v. Gane, 45 N. Y. Super. Ct. 355; Noland v. Noland, 29 Hun (N. Y.) 630; Park v. Park, 80 N. Y. 156, affirming 18 Hun (N. Y.) 466; Edison v. Edison, 56 Mich. 185. 2. Potts v. Potts, 68 Mich. 492. But see Slade v. Slade, 106 Mass. 499. 3. Blake v. Blake. 80 111. 523; Blake v. People, 80 111. ii ; State v. Dent, 29 Kan. 416; Hand v. Hand, 25 Wkly. L. Bull. (Ohio) 214; Stewart v. Stew- art, 23 N. Y. Wkly. L. Bull. 38. 4. Slade v. Slade, 106 Mass. 499. 5. Lewis v. Lewis, 80 Ga. 706, 12 Am. St. Rep. 281; Spencers. Lawler, 79 Cal. 215; Russell v. Russell, 69 Me. 336; State v. Dent, 29 Kan. 416; No land v. Noland. 29 Hun (N. Y.) 630; Park v. Park, 80 N. Y. 156, affirming 18 Hun 466; Staples v. Staples, 87 Wis. 592; Blake v. People, 80 111. n; Newhouse v. Newhouse, 14 Oregon 290. 6. Rye-r v. Ryer, 33 Hun (N. Y.) 116. 7. Ex p. Cottrell, 59 Cal. 417. 8. Holtham v. Holtham (Brooklyn City Ct.), 26 N. Y. Supp. 762; West v. West, ii Pa. Co. Ct. Rep. 254. But see Lewis v. Lewis, 80 Ga. 706, 12 Am. St. Rep. 281. The petition for the writ of attach- ment need not allege husband's ability to pay. Andrew v. Andrew, 62 Vt, 495; Curtis v. Gordon, 62 Vt. 340. Mandamus. Where the defendant is adjudged to be in contempt after an examination into his ability, a man- damus will not lie to compel the judge of the lower court to re-examine the case, where he replies to the petition fora mandamus that he would, if the application had been renewed, have made another examination at the ex- piration of ten days. Spencer i>. Law- ler, 79 Cal. 215. 9. Stahl v. Stahl, 59 Hun (N. Y.) 621, 12 N. Y. Supp. 854. 10. Isaacs v. Isaacs, 61 How. Pr. (N. Y. C. PI.) 369; Slade v. Slade, 106 Mass. 499; French v. French, 4 Mass. 587; Edison v. Edison, 56 Mich. 185; In re Sims, 57 Hun (N. Y.) 433. But see, contra, O'Callaghan v. O'Cal- laghan, 69 111. 552; Ex p. Petrie, 38 111. 498, and Petrie v. People, 40 111. 334, where the court said : " While in the English courts the practice requires notice to be given to the opposite party, to his attorney or some officer of the court on his behalf, before any step is taken, and while in cases of 438 Procedure. ALIMONY. Decree. When Remedy by Attachment. It is a remedy only used in extreme cases, 1 and in some jurisdictions it should not be employed where the wife has already ample security, 2 or unless it has been pre- viously determined by the court that other methods will not be effective. 3 The attachment issues by a court of chancery in the exercise of its ordinary powers. 4 Numerous conditions contribute to the election of this remedy in preference to, or its rejection in favor of, some other. 5 Imprisonment for Debt. A decree for alimony, by the great weight of authority, is not a debt within the meaning of statutes or con- stitutions which prohibit imprisonment for debt. 6 this character it is perhaps, the better practice, yet it has not been regarded as indispensable in our practice. After a party has been once brought into court, the presumption is that he is present and cognizant of every step taken in the cause until it is termi- nated, unless there has considerable time elapsed without taking any steps in the case." What Service Necessary. Regular service of the petition for attachment is not necessary, only such as the rules of court require. Lyon v. Lyon, 21 Conn. 185. See also Ex p. Cottrell, 59 Cal. 417. It is sufficient if served on attorney where the party appears by attorney. Mahon v. Mahon, 50 N. Y. Super. Ct. 92. New York. In this state the order to show cause must adjudicate in terms that the defendant has commit- ted the offense charged, and that that offense was calculated to, or actually did, injure the rights of the plaintiff. Code Civ. Proc. 2281. And it must also further appear in said order that the payment of the alimony awarded cannot be enforced by execution, sequestration, or resorting to the se- curity of the party who is the subject of the order. Code Civ. Proc., 1773; see also Stahl v. Stahl, 59 Hun (N. Y.)62i, 12 N. Y. Supp. 854; Whitney v. Whitney, 58 N. Y. Super. Ct. 335, II N. Y. Supp. 582; In re Sims, 57 Hun (N. Y.) 433; Mahon v. Mahon, 50 N. Y. Super. Ct. 92. 1. Haines v. Haines, 35 Mich. 138. 2. Andrews v. Andrews, 69 111. 609; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 5?. 3. Cockefair v. Cockefair (Supreme Ct.), 7 N. Y. Supp, 170, 23 Abb. N. Cas. (N. Y.) 219; Isaacs v. Isaacs, 10 Daly (N. Y.) 306, affirming 61 How. Pr. (N. Y.) 369, where the court said: " The intention of the legislature was to prevent the imprisonment of a party disobeying an order directing the payment of temporary alimony, until proceedings against property had failed, or the court was satisfied, from facts, of the inutility of a di- rection for such proceeding." See pre- ceding col. " New York." But see Park v. Park, 80 N. Y. 156, affirming 18 Hun (N. Y.) 466; Andrew v.. An- drew, 62 Vt. 495. 4. O'Callaghan v. O'Callaghan, 69 111. 552. 5. Hand v. Hand, 25 Wkly. L. Bull. (Ohio) 214 ; Allen v. Allen, 72 Iowa 502; Gane v. Gane, 45 N. Y. Super. Ct. 355; Isaacs v. Isaacs, 10 Daly (N. Y.) 306, affirming 61 How. Pr. (N. Y.) 369; Jacquin v. Jacquin, 36 Hun (N. Y.) 378, 2 How. Pr. N. S. (N. Y.) 206. In Traylor v. Richardson, 2 Ind. App. 452, it was said: " The statute provides that such an order may be enforced by attachment by the court or judge making it. A person having a right to enforce payment of money by proceedings in contempt may waive, if he sees proper, such sum- mary mode of enforcing his claim, and afford the defendant the common- law rights of defense by an action." After Final Verdict. The failure to enforce the payment of temporary ali- mony during the pendency of the suit cannot deprive plaintiff of the right to sue for the same after final verdict disallowing permanent alimony. Gib- son v. Patterson, 75 Ga. 549. 6. Lewis v. Lewis, 80 Ga. 706, 12 Am. St. Rep. 281; Chase v. Ingalls, 97 Mass. 524; Ex p. Perkins, 18 Cal. 60; Lyon v. Lyon, 21 Conn. 185; Andrew v. Andrew, 62 Vt. 495; Curtis v. Gordon, 62 Vt. 340; Hand v. Hand, 25 Wkly. L. Bull. (Ohio) 214; Haines 439 Procedure. ALIMONY. Securing Alimony. How Application Made. The application for an attachment is usually made by motion 1 or petition.* The application for a remedy to enforce an alimony decree or order should be made in the original suit, and not take the form of a new proceeding. 3 5. Securing Alimony and Defeating Frauds Thereon a. SECURING ALIMONY. There are four methods of securing the wife's claim for alimony commonly in vogue, the writ of ne exeat, the writ of injunction, making the alimony granted a lien on the real estate of the husband, and requiring security for its payment. (1) Writ of Ne Exeat, In England the writ of ne exeat regno was issued out of the chancery courts on the application of the wife, supported by her affidavit that her husband was about to leave the country to avoid payment of the order or decree for alimony. 4 This writ was granted in aid of the decree of the v. Haines, 35 Mich. 138; Paint/. Pain, 80 N. Car. 322; Musser v. Stewart, 21 Ohio St. 353; Dwelly v. Dwelly, 46 Mo. 378. Contra, Coughlin v. Ehlert, 39 Mo. 285; and see Goodwillie v. Millimann, 56 111. 523. Reasons. The grounds on which this doctrine rests are that the obliga- tion to pay alimony is more of a duty than a debt. Ex p. Perkins, 18 Cal. 60; Pain v. Pain, 80 N. Car. 322; Carl- ton v. Carlton, 44 Ga. 216; Menzie v. Anderson, 65 Ind. 239; Daniels v. Lindley, 44 Iowa 567; and that the ac- tion of the court is based upon the contemptuous refusal to pay rather than the default. O'Callahan v. O'Callahan, 69 111. 552; Coughlin v. Ehlert, 39 Mo. 285; Slade v. Slade, 106 Mass. 499. Temporary Alimony. A very ques- tionable distinction has been taken in this connection between temporary and permanent alimony. Stewart v. Stewart, 23 Wkly. L. Bull. (Ohio) 38, citing Coughlin v. Ehlert, 39 Mo. 285. 1. Petrie v. People, 40 111. 334. See Newcomb v. Newcomb, 12 Gray (Mass.) 28; cases cited ante, p. 437, note 2. 2. Lyon v. Lyon, 21 Conn. 185; Andrew v. Andrew, 62 Vt. 495; Curtis v. Gordon, 62 Vt. 340; cases cited ante, p. 437, note 2. Attachment Cannot Be Collaterally At- tacked The action of the court in committing for contempt cannot be reviewed on certiorari from contempt proceedings or habeas corpus, the allowance of alimony being an appeal- able order. Such methods are an indirect attack upon the action of the court. State v. Second Judicial Dist. Ct., (Mont., 1891), 36 Pac. Rep. 757. 3. Lyon v. Lyon, 21 Conn. 185; Bau- man v. Bauman, 18 Ark. 320, 68 Am. Dec. 171. Subsequent Term of Court. Where a commissioner, appointed by a decree of divorce and alimony to ascertain the financial condition of the husband, reported him insolvent, and the wife brought a bill some years later to en- force the original decree, suggesting that the husband had acquired certain property since the decree was made, it was held that the bill was properly dismissed, as the decree was not final, and that the wife should have pro- ceeded in the original cause, which was still pending. Bankston v. Bankston, 27 Miss. 692. So a petition for an attachment for contempt brought at a term subse- quent to the one in which the decree was made should be treated as a pro- ceeding in the original suit. Andrew v. Andrew, 62 Vt. 495. Restitution. It has been held that on good cause shown a writ of restitu- tion may be awarded for alimony that has been already granted in a divorce suit. Mullin v. Mullin, 60 N. H. 16. 4. This writ has almost entirely dis- appeared from modern practice, being superseded by more flexible and effect- ive methods. But see Vandergucht v. De Blaquiere, 8 Sim. 315; Head v. Head, 3 Atk. 295; Anonymous, 2 Atk. 210; Pearne v. Lisle, Amb. 75 ; Smith- son's Case, 2 Vent. 345; Howden v. Rogers, i Ves. & B. 129; Read v. Read, I Cas. Ch., 2 Ch. R. 19; Ex p. Whit- more, I Dick. 143; Haffey v. Haffey, 14 440 "Procedure. ALIMONY. Securing Alimony. ecclesiastical courts, and only after the decree had been made. 1 But the writ of ne exeat republica the corresponding writ in this -country may be asked simultaneously with the filing of the bill,'-* and may be granted even before the decree, 3 in fact at any time after the suit is pending. 4 It is issued on the petition of the wife, supported by her own affidavit and usually those of other parties; 5 but the affidavit of the wife alone is sufficient, 6 though the allega- tion that the husband is going to leave the state must be definite. 7 The writ will, in general, be discharged on the husband's giving security. 8 Ves. Jr. 261; Oldham z>. Oldham, 7 Ves. Jr. 410; Dawson v. Dawson, 7 Ves. Jr. 173; Shaftoe v. Shaftoe, 7 Ves. Jr. 171; Cock v. Ravie, 6 Ves. Jr. 283; Anonymous, 2 Ves. Jr. 489; Coglar v. Coglar, i Ves. Jr. 94; Street v. Street, T. & R. 322. 1. Shaftoe v. Shaftoe, 7 Ves. Jr. 172; Coglar v. Coglar, i Ves. Jr. 94; Newton v. Newton, L. R. i P. D. n. 2. Harper v. Rooker, 52 111. 370. Not Before Suit Pending. But it must not be asked before the suit is begun, the court saying that "the proper course" is "to file the bill or petition for divorce, and after that to file a pe- tition for the ne exeat, supported by the necessary affidavit, sworn subsequently to the filing of the bill." Bylandt v. Bylandt, 6 N. J. Eq. 28. 3. McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407. See this case for a full discussion of this writ; also Bayly v. Bayly, 2 Md. Ch. 326, where the court said : "It would seem to be settled in England that the court of chancery will not issue the writ of ne exeat regno in cases of alimony unless there has been an actual decree for alimony by the spiritual courts ; that it will not be granted, even where there has been such decree, pending an appeal from it by the husband, nor for interim ali-. mony granted pendente lite, before a de- cree, nor for any other sum than that which is actually due for alimony and costs. Daniell Ch. Pr. 1926, 1927 ; 2 Story Com. on Equity, 1471, 1472. In New York, however, Mr. Chancel- lor Kent, in Denton v. Denton, I Johns. Ch. (N. Y.) 441, did grant the writ upon the petition of the wife pendente ' lite. It is possible that the difference in regard to the stage of the cause at which this remedy will be granted in England &n& in New York arises from the fact that in NewYork the Court of Chancery has jurisdiction over the question of divorce and alimony, which in England belongs to the ecclesiastical courts, the Court of Chancery there only coming to its aid to prevent its decree from being defeated, which the former court might be unable to do." 4. Harper v. Rooker, 52 111. 370; Bylandt v. Bylandt, 6 N. J. Eq. 28. The writ may be granted even while proceedings are being had to enforce the payment of alimony already de- creed. Lyon v. Lyon, 21 Conn. 185. 5. Lyon v. Lyon, 21 Conn. 185; Mc- Gee -v. McGee, 8 Ga. 295, 52 Am. Dec. 407; Harper v. Rooker, 52 111. 370; Bayly v. Bayly, 2 Md. Ch. 326; Yule v, Yule, 10 N. J. Eq. 138; Bylandt v. By- landt, 6 N. J. Eq. 28; Kirby v. Kirby, I Paige (N. Y.)26i; Denton v. Denton, l Johns. Ch. (N. Y.) 364; Hammond v. Hammond, Clarke Ch. (N. Y.) 151; Boucicault v. Boucicault, 59 How. Pr. (N. Y. Supreme Ct.) 131; Prather -v. Prather, 4 Desaus.- Eq. (S. Car.) 33; Devall v. Devall, 4 Desaus. Eq. (S. Car.) 79. 6. McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407; Bayly v. Bayly, 2 Md. Ch. 326; Yule v. Yule, 10 N. J. Eq. 138; Kirby v. Kirby, i Paige (N. Y.) 261. 7. McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407. The writ should not be issued in a doubtful case, although under some circumstances an affidavit on informa- tion and belief will be sufficient. The debt or duty at least should be certain. Yule v. Yule, 10 N. J. Eq. 138. 8. Prather v. Prather, 4 Desaus. Eq. (S. Car.) 33; Devall v. Devall, 4 Desaus. Eq. (S. Car.) 79; McGee v. McGee, 8 Ga. 295, 52 Am. Dec. 407. Neither an injunction nor a ne exeat will be discharged upon the mere allegation by the husband in his answer that he has no intention of selling his property or leaving the 441 Procedure. ALIMONY. Securing Alimony. (2) Writ of Injunction. This writ may be granted by any equity court in the exercise of its ordinary powers, 1 but by a common- law court only under statute. Its use in protecting and secur- ing the wife's claim to alimony is to restrain any disposition by the husband of his property which is likely or intended to impair or defeat such claim; and it is commonly issued on the petition and affidavit of the wife.* This is done even though no decree or award has yet been made ; 3 but there must be a proper show- ing 4 that the property is in peril, 5 the allegations in the petition being required to set out not only the fears of the wife but the facts on which they are grounded. 6 The mere denial in the answer of the husband will not prevail to dissolve the injunction. 7 state. Hammond v. Hammond, Clarke Ch. (N. Y.) 151. 1. Gardner v. Gardner, 87 N. Y. 114. See Black v. Black, 5 Mont. 15- New Hampshire. It is held in this state that its equity courts, having no jurisdiction over the subject of ali- mony without divorce, cannot, by virtue of their ordinary power to issue injunctions, restrain a husband from getting possession of his wife's estate, where he is not asking the aid of the court, either at law or in equity, for that purpose. Parsons v. Parsons, 9 N. H. 309, 32 Am. Dec. 362. 2. Alabama. Goodrich v. Goodrich, 44 Ala. 670; Norris v. Norris, 27 Ala. 519- New York. Gardner v. Gardner, 87 N. Y. 14; Hammond v. Hammond, Clarke Ch. (N. Y.) 151; Carey v. Carey, 2 Daly (N. Y.) 424; Rose v. Rose, n Paige (N. Y.) 166; Laurie v. Laurie, 9 Paige (N. Y.) 234; Kirby v. Kirby, I Paige (N. Y.) 261. Illinois. Springfield Marine, etc., Ins. Co. v. Peck, 102 111. 265; Bergen v. Bergen, 22 111. 187; Vanzant v. Van- zant, 23 111. 536; Errissman v. Erriss- man, 25 111. 136; Drapery. Draper, 68 111. 17. Ohio. Wilson v. Wilson, Wright (Ohio) 128; Questel v. Questel, Wright (Ohio) 492 ; Tolerton v. Willard, 30 Ohio St. 579. Georgia. Gray v. Gray, 65 Ga. 193; Lamar v. Jennings, 69 Ga. 392; John- son v. Johnson, 59 Ga. 613. Maryland. Ricketts v. Ricketts, 4 Gill (Md.) 105; Gechter v. Gechter, 51 Md. 187. South Carolina. Greenland v. Brown, I Desaus. Eq. (S. Car.) 196; Wilson v. Wilson, i Desaus. Eq. (S. Car.) 219. Tennessee. Boils z>. Boils, I Coldw. (Tenn.) 284; Stillman v. Stillman, 7 Baxt. (Tenn.) 169. Other States. Remington v. San Francisco, 69 Cal. 633; Frakes v. Brown, 2 Blackf. (Ind.) 295; Wharton v. Wharton, 57 Iowa 696; Fishli v. Fishli, 2 Litt. (Ky.) 337; Morrison v. Morrison, 49 N. H. 69; Gilmore z 1 . Gilmore, 5 Jones Eq. (N. Car.) 284; Weaver v. Pickard, 7 Utah 296. 3. 2 Bish. on M., D., & S. 1107, and note 2; Wilson v. Wilson. Wright (Ohio) 128; cases cited, note 2 supra. Contra, Newton v. Newton, L. R. n P. D. n. So an injunction will be granted where the proof fails and the cause is continued. Wilson v. Wilson, Wright (Ohio) 128. 4. Wharton v. Wharton, 57 Iowa 696. 5. Johnson v. Johnson, 59 Ga. 613. Texas. But it seems that in Texas, under the statute, an injunction is granted almost as a matter of course, the court having little discretion in the matter. Wright v. Wright, 3 Tex. 168. 6. Norris v. Norris, 27 Ala. 519. See Johnson v. Johnson, 59 Ga. 613. Bill Demurrable. If the bill is bad on demurrer, even in point of form merely, the injunction will not be granted. Rose v. Rose, n Paige (N.Y.) 166. See Remington v. San Francisco, 69 Cal. 633. But where the allegations are not sufficient to sustain an injunc- tion, one that has already been granted may be dissolved, but the bill retained for further relief. Norris v. Norris. 27 Ala. 519. 7. Hammond v. Hammond, Clarke Ch. (N.Y.) 151. 442 Procedure. ALIMONY. Securing Alimony. Operation of Injunction. An injunction operates to prevent incum- brances as well as conveyances, 1 but should not have the effect of breaking up the husband's trade. 3 Against Whom Granted. It may be granted against the husband and against all who cooperate with him, and the bill may join all such persons as parties ; 3 but a bona-fide purchaser from the husband will not be affected unless he has notice of the injunc- tion.* The Terms of the injunction should be clear and explicit. 5 Receiver. In addition to this method of securing the wife's ali- mony, and sometimes as supplementary thereto, a receiver of the husband's property may be appointed. 6 (3) Decree as Lien on Land. A divorce suit is not in itself a lien on the real estate of the husband, 7 the doctrine of Us pen- dens having reference only to proceedings directly involving the thing or property in question ; 8 and even the decree, being m 1. Vanzant v. Vanzant, 23 111. 536. Where an injunction has been grant- ed to restrain defendant from mortgag- ing his property, it seems that does not restrain him from mortgaging his property, other than the homestead, to raise money to pay alimony. Fro- man v. Froman, 53 Mich. 581. 2. Rose v. Rose, n Paige (N. Y.) 166. In some cases the wife has even been required to give bond. Boils v. Boils, iColdw. (Tenn.)284. 3. Gray v. Gray, 65 Ga. 193; Ricketts v. Ricketts, 4 Gill (Md.) 105; Draper v. Draper, 68 111. 17; Wetmore v. Wet- more, 5 Oregon 469; Gibson v. Gibson, 46 Wis. 449. See also Bamford v. Barn- ford, 4 Oregon 30; Monroy v. Monroy, i Edw. Ch. (N. Y.) 382; Stewart on M. & D. 326. 4. Frakes v. Brown, 2 Blackf. (Ind.) 295- A bona-fide assignee of choses in ac- tion cannot be restrained from collect- ing them. Gilmore v. Gilmore, 5 Jones Eq. (N. Car.) 284. 5. Laurie v. Laurie, 9 Paige (N. Y.) 234, where the court said: "The lan- guage of the injunction should in all cases be so clear and explicit that an unlearned man can understand its should be restrained from exercis- ing." When It Ceases to Be Operative. A temporary injunction which in terms is to continue in force until further order of court ceases on a final judg- ment in favor of plaintiff which makes no provision for its continu- ance; and the fact that defendant has appealed does not modify the legal effect in any particular. Gardner v. Gardner, 87 N. Y. 14. 6. Holmes v. Holmes, 29 N. J. Eq. 9- Bergen v. Bergen, 22 111. 187; Carey v. Carey, 2 Daly (N. Y.) 424; Questel v. Questel, Wright (Ohio) 492; Still- man v. Stillman, 7 Baxt. (Tenn.) 169; Barker v. Dayton, 28 Wis. 367; Kirby v. Kirby, i Paige (N. Y.) 261. See Gray v. Gray, 65 Ga. 193. 7. Feigley v. Feigley, 7 Md. 537, 61 Am. Dec. 375; Daniel v. Hodges, 87 N. Car. 95; Sapp v. Wightman, 103. 111. 150; Gilmore v. Gilmore, 5 Jones Eq. (N. Car.) 284; Hamlin v. Bevans, 7 Ohio 161. Contra, Vanzant -v. Van- zant, 23 111. 536. 8. Scott v. Rogers, 77 Iowa 483; Feigley v. Feigley, 7 Md. 537, 61 Am. Dec. 375; Freeman on Judgments, 196. This general doctrine is sus- tained in Daniel v. Hodges, 87 N. meaning without the necessity of em- Car. 95; but it is there held that special ploying counsel to advise him what he has a right to do to save him from sub- jecting himself .to punishment for a breach of the injunction. And the lan- guage of the writ should at the same time be so restricted as not to deprive him of any right which the case made by the bill does not require that he circumstances may vary the rule, and that where a proceeding incidental- ly draws property in question, this is such a Us pendcns as affects with notice a purchaser pendente lite; and that this result is not destroyed by a reversal of an order in the cause. Property Specifically Described. But 443 Procedure. ALIMONY. Securing Alimony. fersonam?- is not alien on the husband's property; 2 but it maybe made so by especially charging it on particular property, as is fre- quently done. 3 To What Lien Attaches. But the decree cannot be a lien on per- sonal property, 4 nor on real estate outside of the jurisdiction of the court granting it; 5 but it may be on husband's remainder in real or personal property, vested in interest, though contingent in amount. 6 Order to Convey Property to Trustee. The decree may also order the husband to convey certain property to a trustee for the wife's benefit. 7 where the petition for divorce and ali- mony specifically describes certain property, charging it with equities of the wife, and the court in its decree acted on and favorably to those equi- ties, the proceeding is a. Us pendens, and the decree a lien on said property pref- erable to that of a mortgagor who be- came so, with notice, pending such proceeding. Tolerton v. Williard, 30 Ohio St. 579. See also Draper v. Draper, 68 111. 17; Sapp v. Wightman, 103 111. 150; Harshberger v. Harsh- berger, 26 Iowa 503. 1. Ante, p. 413, note 2. See Ellison v. Martin, 53 Mo. 575, where it was doubted whether or not the court would have power to enter up a judgment in rent against the husband's property if specifically described in the petition for divorce and alimony. 2. Lawton's Petition, 12 R. I. 210, in which case the decree awarded ali- mony " to be paid" by the husband "out of his real and personal estate." 3. Rhode Island. Lawton's Petition, 12 R. I. 210. Illinois. Storey v. Storey, 125 111. 608, 8 Am. St. Rep. 417; Wightman v. Wightman, 45 111. 167; Andrews v. Andrews, 69 111. 609; O'Callaghan v. O'Callaghan, 69 111. 552; Thomas v. Thomas, 44 111. App. 604. Iowa. Daniels v. Lindley, 44 Iowa 567; Sesterhen v. Sesterhen, 60 Iowa 301; Russell -v. Russell, 4 Greene (Iowa) 26, 61 Am. Dec. 112; Harshberger v. Harshberger, 26 Iowa 503. Ohio. Hamlin v. Bevans, 7 Ohio 161; Olin v. Hungerford, 10 Ohio 268. New Jersey. Stoy v. Stoy, 41 N. J. Eq. 370, and note; Holmes v. Holmes, 29 N. J. Eq. 9. Other States. Bauman v. Bauman, 18 Ark. 320, 68 Am. Dec. 171; Robin- son v. Robinson, 79 Cal. 511; Blanken- ship v. Blankenship, 19 Kan. 159; Lamy v. Catron (N. Mex., 1890), 23 Pac. Rep. 773; Galusha v. Galusha, 108 N. Y. 114; Stillman v. Stillman, 7 Baxt. (Tenn.) 169; Foster v. Foster, 56 Vt. 540; Keyes v. Scanlan, 63 Wis. 345. Contra. This general doctrine is well established, but the reverse has been sometimes held. Kurtz v. Kurtz, 38 Ark. 119; Swansen v. Swansen, 12 Neb. 210; Brotherton v. Brotherton, 14 Neb. 186; Casteel v. Casteel, 38 Ark. 477, in which case the court said : " The alimony should not have been made a lien upon the lands of the complainant. This is equivalent to charging them with an annuity, which the owner might do voluntarily, but the court should not do ininvitum, as it embarrasses alienation. If the objection had been made or were now insisted on the court might have se- cured the payment of the alimony by sequestration or by exacting sureties." Description of Property Must Be Defi- nite. Sufficiently so to identify the particular estate designated, Stratton v. Stratton, 77 Me. 373, 52 Am. Rep. 779- A decree which, in terms, orders that defendant's real estate be se- questered to secure allowances, unless otherwise secured, does not create a lien. Hills v. Hills, 76 Me. 488. 4. Yelton v. Handley, 28 111. App. 640. 5. It cannot, therefore, extend to lands situated in another county, and the court cannot make it so extend. Sapp v. Wightman, 103 111. 150. Con- tra, Harshberger v. Harshberger, 26 Iowa 503. 6. Min Young v. Min Young, 47 Ohio St. 501. 7. Madison v. Madison, I Wash. Ter. 60; Ricketts v. Ricketts, 4 Gill (Md.) 105; or for the joint use of both, Greenland v. Brown, I Desaus. Eq. (S. 444 Procedure. ALIMONY. Securing Alimony. (4) Requiring Security. The courts in most of our states have the power of requiring bond with approved security to ensure the payment of alimony. It is, perhaps, the most usual method. 1 It maybe enforced by attachment for contempt, 2 by sequestration, 3 by the writ of ne exeat* or by the writ of injunction. 5 Where an alimony judgment which makes no provision for security is sub- ject to the continuing power of the court, security may never- theless be required at a time after the entry of such judg- ment. 6 A Bond for Alimony is not assignable, 7 nor suable without leave in a court other than the one having jurisdiction over the case. 8 b. FRAUDULENT ASSIGNMENTS. The wife's right to alimony is within the protection of statutes dealing with fraudulent con- veyances. Assignments of the husband's property, if fraudu- lently made for the purpose of defeating the wife's claim, will be Car.) 196; or compel the execution of a bond and trust deed as security, Storey v. Storey, 125 111. 608, 8 Am. St. Rep. 417. So a mortgage on real estate has been required in order to stay execu- tion pending an appeal. Galusha v. Galusha, 108 N. Y. 114. 1. Nearly all of the state statutes have provisions dealing with this sub- ject, and reference must be made to them. Consult also the following cases: Prather v. Prather, 4 Desaus. Eq. (S. Car.) 33; Harper v. Rooker, 52 111. 370; Gane v. Gane, 46 N. Y. Super. Ct. 218, 45 N. Y. Super. Ct. 355; Gardner v. Gardner, 87 N- Y. 14; Guenther v. Jacobs, 44 Wis. 354; Wright v. Wright, 74 Wis. 439; Day- ton v. Drake, 64 Iowa 714; Hills v. Hills, 76 Me. 488; Lockridge v. Lock- ridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52; Slade v. Slade, 106 Mass. 499. See also Rice v. Rice, 13 Ind. 562; Bur- nett v. Paine, 62 Me. 122; Galusha v. Galusha, 108 N. Y. 114. 2. Gibson v. Patterson, 75 Ga. 549; Isaacs v. Isaacs, 61 How. Pr. (N. Y. C. PI.) 369; Park v. Park, 80 N. Y. 156, affirming 18 Hun (N. Y.) 466; Slade v. Slade, 106 Mass. 499; Wright v. Wright, 74 Wis. 439. See Gane v. Gane, 46 N. Y. Super. Ct. 218, 45 N. Y. Super. Ct. 355. 3. Guenther v. Jacobs, 44 Wis. 354; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52, where it was said: "The more approved and provident decree is to require a bond, with ap- proved security, for such an annuity as shall be fixed by the court, payable in prescribed instalments, reserving the power to compel payment from time to time by attachment, seques- tration, or otherwise." 4. McGee v. McGee, 8 Ga. 295, 52- Am. Dec. 407; Prather v. Prather, 4 Desaus. Eq. (S. Car.) 33; Devall v. Devall, 4 Desaus. Eq. (S. Car.) 79. 5. Questel v. Questel, Wright (Ohio) 492. 6. Wright v. Wright, 74 Wis, 439. But no security can be required in the case of alimony granted during a pro- ceeding to modify a judgment, the Code not providing for the exercise of such power. Blake v. Blake, 70 Wis. 238. 7. The reasons given are that such an assignment is contrary to public policy, and tends to lessen the chances of reconciliation. Reiffenstein v. Hoop- er, 36 U. C. Q. B. 295. 8. Guenther v. Jacobs, 44 Wis. 354. By What Proceeding. A surety can only be proceeded against by regular action on the bond, not by order in the divorce suit or other summary pro- ceeding. Guenther's Appeal, 40 Wis. "5- Where an alimony judgment was rendered for $200 and one-third of the hUsband's real estate, and the appel- late court modified the judgment by giving the wife $3200 in money and no real estate, it was held, in a suit on the appeal bond, that the bond was security only for $200 in money. Rice v. Rice, 13 Ind. 562. An Instalment of Alimony is not as- signable before due. Kempster v Evans, 81 Wis. 247. 445 Procedure. ALIMONY. Appeals. set aside ; but if good when made, they cannot be subsequently attacked. 1 6. Appeals. 2 Appeals are regulated largely by statutes in the different states. It may be stated generally that whether alimony shall be granted at all is a matter of law. 3 An appeal will there- fore lie from the action of the lower court for refusing 4 or grant, ing an allowance of alimony, 5 whether temporary or permanent. c Discretion as to Amount. But the amount to be granted is said to be a matter of discretion, and rests largely with the trial court. 7 1. See Am. & Eng. Ency, Law, tit, ALIMONY. This subject is not properly within the scope of this article. The follow- ing cases, however, are added for ref- erence: Indiana. Barrow v. Barrow, 108 Ind. 345; Plunkett v. Plunkett, 114 Ind. 484; Frakes v. Brown, 2 Blackf. (Ind.) 295; Metzler v. Metzler, 99 Ind. 384- Massachusetts. Burrows v. Purple, 107 Mass. 428; Chase v. Chase, 105 Mass. 385; Allen v. Allen, 100 Mass. 373; Livermore v. Boutelle, n Gray (Mass.) 217, 71 Am. Dec. 708; Porter v. Wakefield, 146 Mass. 25; Stuart v. Stuart, 123 Mass. 370. Illinois. Springfield Marine, etc., Ins. Co. v. Peck, 102 111. 265; Tyler v. Tyler, 126 111. 525, 9 Am. St. Rep. 642; Draper v. Draper, 68 111. 17; Bear v. Bear, 145 111. 21. New Hampshire. Janvrin v. Curtis, 63 N. H. 312; Janvrin z/. Janvrin, 60 N. H. 169; Morrison v. Morrison, 49 N. H. 69. Iowa. Picket v. Garrison, 76 Iowa 347; Boog v. Boog, 78 Iowa 524; Ses- terhen v. Sesterhen, 60 Iowa 301. Vermont. Green v. Adams, 59 Vt. 602, 59 Am. Rep. 761; Foster v. Foster, 56 Vt. 540. Georgia. Odom v. Odom, 36 Ga. 286; Halleman v. Halleman, 65 Ga. 476. Texas. Lott v. Kaiser, 61 Tex. 665; Berg v. Ingalls, 79 Tex. 522. Wisconsin. Damon v. Damon, 28 Wis. 510; Way v. Way, 67 Wis. 662. Other States. Goodrich v. Goodrich, 44 Ala. 670; Gregory -v. Filbeck, 12 Colo. 379; Feigley v. Feigley, 7 Md. 537, 61 Am. Dec. 375; Reeg v. Burn- ham, 55 Mich. 39; Atkins v. Atkins, 18 Neb. 474; Powell v. Campbell, 20 Nev. 232, 19 Am. St. Rep. 350; Tolerton v. Williard, 30 Ohio St. 579; Wetmore v. Wetmore, 5 Oregon 469; Bouslough v. Bouslough, 68 Pa. St. 495; Nix v. Nix, 10 Heisk. (Tenn.) 546; Boils v. Boils, i Coldw.(Tenn.) 284. England. Brown v. Brown, 2 Hagg. Ecc. 5, 4 Eng. Ecc. u. 2. The cases cited in this section touching appeals in the matter of tem- porary alimony refer frequently also, and sometimes exclusively, to counsel fees and suit money, the principles and doctrines applying to the three subjects being much the same. 3. Schonwald v. Schonwald, Phil. Eq. (N. Car.) 215 ; Whitsell v. Whitsell, 8 B. Mon. (Ky.) 50; Collins v. Collins, 71 N. Y. 269; Wagner v. Wagner, 34 Minn. 441. It is said, for instance, in Wagner v. Wagner, 34 Minn. 441, that any order which "determines the strict legal rights of the parties " is appealable, as an order granting an allowance pendente lite. 4. Whitsell v. Whitsell, 8 B. Mon. (Ky.) 50; Schonwald v. Schonwald, Phil. Eq. (N. Car.) 215; Taylor v. Taylor, I Jones (N. Car.) 528; Chaires v. Chaires, 10 Fla. 308; Blair v. Blair, 74 Iowa 311; Boggess v. Boggess, 4 Dana (Ky.) 307; Reynolds v. Rey- nolds, 92 Mich. 104; Dickerson v. Dickerson, 26 Neb. 318. Alabama. It seems that under Civ. Code of 1886, vol. i., 2331, the right to temporary alimony is absolute, and not in any sense a matter of judicial discretion. Edwards v. Edwards, 80 Ala. 97. 5. Leslie v. Leslie, 6 Abb. Pr. N. S. (N. Y. C. PI.) 193; Jenkins v. Jenkins, 91 111. 167; Blair v. Blair, 74 Iowa 311; Chaires v. Chaires, 10 Fla. 308; Bog- gess v. Boggess, 4 Dana (Ky.) 307; Mangels v. Mangels, 6 Mo. App. 481. A reversal of a decree of divorce does not necessarily reverse a decree for alimony, although both may be part of one entry in the trial court. Mangels v. Mangels, 6 Mo. App. 481; Jenkins v. Jenkins, 91 111. 167. 6. Cases cited supra, notes 3-5. 7. Cases infra, p. 447, notes :~4. 446 Procedure. ALIMONY. Appeal*. This discretion, however, is judicial, not arbitrary. 1 Abuse of Discretion. And appeals from all orders or decrees, either for permanent 2 or for temporary alimony, will be allowed where an abuse of discretion in the trial court can be clearly shown. 3 Alimony Pendente Lite. Yet it has been held in some jurisdictions that an order for alimony pendente lite is not final, but interlocu- tory, and therefore not appealable, 4 the amount to be awarded 1. Foss v. Foss, 100 111. 576; Countz v. Countz, 30 Ark. 73 ; Rossman v. Rossman, 62 Mich. 429; De Llamosas v. De Llamosas, 62 N. Y. 618; Stillman v. Stillman, 99 111. 196, 39 Am. Rep. 21; Foote v. Foote, 22 111. 425; Wooley v. Wooley, 24 111. App. 431 ; Jones v. Jones, L. R. 2 P. & M. 333 ; Burr v. Burr, 7 Hill (N. Y.) 207 ; Cooke v. Cooke, 2 Phillim. 40, wherein Sir John Nicholl said : " Now, although ali- mony that is, the allowance to be made to a wife for her maintenance, either during a matrimonial suit or when she has proved herself entitled to a separate maintenance is said to be discretionary with the court; but it is a judicial, not an arbitrary, dis- cretion which is to be exercised; and therefore it is clearly a subject of ap- peal : at the same time, upon a point where there is no other rule or crite- rion to guide than the boni viri arbit- rium, it is only upon a strong differ- ence of opinion where the court of appeal would be disposed to disturb the sentence." This case was referred to and affirmed in Street v. Street, 2 Add. Ecc. i. See also Brinkley v. Brinkley, 50 N. Y. 203. 2. Chaires v. Chaires, 10 Fla. 308 ; Peck v. Peck, 113 Ind. 168; Cox v. Cox, 19 Ohio St. 502; Street v. Street, 2 Add. Ecc. i; Powell v. Powell, 53 Ind. 513; Stillman v. Stillman, 99 111. 196 ; 39 Am. Rep. 21; Andrews v. Andrews, 69 111. 609; Ressor v. Ressor, 82 111. 442; Varney v. Varney, 58 Wis. 19; Taylor Gladwin, 40 Mich. 232; Maguire v. Maguire, 7 Dana (Ky.) 181; Vinson v. Vinson (Ga. 1894), 19 S. E. Rep. 898; Lake v. Lake, 17 Nev. 230; Burr v. Burr, 7 Hill (N. Y.) 207; Jeter v. Jeter, 36 Ala. 391. Yet it has been held that a decree for permanent alimony, as well as one providing for the support of a child, is entirely within the discretion of the trial court, and that exceptions will not lie thereto. Call v. Call, 65 Me. 407 ; Sparhawk v. Sparhawk, 120 Mass. 390. So an order for the support of children is but an incident of divorce, and no appeal will lie from that order alone. Thompson v. Thompson, 5 Utah 401. 3. Illinois. Wooley v. Wooley, 24 111. App. 431; Lane v. Lane, 22 111. App. 529 ; Burgess v. Burgess, 25 111. App. 525; Lind v. Lind, 37 111. App. 178; Jenkins v. Jenkins, 91 111. 167; Stillman v. Stillman, 99 111. 196, 39 Am. Rep. 21. California. Sharon v. Sharon, 68 Cal. 326; Sharon v. Sharon, 75 Cal. i; Turner v. Turner, 80 Cal. 141; Langan v. Langan, 91 Cal. 654; Bohnert v. Bohnert, 91 Cal. 428. New York. Brinkley v. Brinkley, 50 N. Y. 184; De Llamosas v. De Lla- mosas, 62 N. Y. 618; Aldrich v. Aldrich (Supreme Ct.),26 N. Y. Supp. 344. Georgia. McGee v. McGee, 10 Ga. 477; Glenn v. Hill, 50 Ga. 94. Arkansas. Hecht v. Hecht, 28 Ark. 92 ; Glenn v. Glenn, 44 Ark. 46. Minnesota. Wagner v. Wagner, 34 Minn. 441; Wagner v. Wagner, 39 Minn. 394. Michigan. Froman -v. Froman, 53 Mich. 581; Rose v. Rose, 53 Mich. 585. Other States. Dickerson v. Dicker- son, 26 Neb. 318; Miller v. Miller, 43 Iowa, 325 ; State v. Seddon, 93 Mo. 520; Bardin v. Bardin (S. Dak., 1893), 56 N. W. Rep. 1069; Grant v. Grant (S. Dak., 1894), 57 N. W. Rep. 948. England. Cooke v. Cooke, 2 Phil- lim. 40; Street v. Street, 2 Add. Ecc". i ; Jones v. Jones, L. R. 2 P. & M. 333. See Rossman v. Rossman, 62 Mich. 429, where the court said : " The mak- ing of these allowances, in matters of divorce, is placed by the statute with the circuit judge. The amount to be allowed and the time and manner of payment are to be governed by his discretion, and we should hesitate to override his action without a strong and positive showing of an abuse of judicial discretion." See also Brink- ley v. Erinkley, 50 N. Y. 203. 4. Lapham v. Lapham, 40 Mich. 527; Cooper v. Mayhew, 40 Mich. 528. 447 Procedure. ALIMONY. Appeals. being entirely within the discretion of the trial court; 1 but the weight of authority is clearly to the effect that such an order or decree is sufficiently final to permit an appeal therefrom. 2 It is abundantly well established, as a general rule, 3 that pending an appeal a wife is entitled to alimony and counsel fees whether she was complainant or defendant below, 4 or whether she is appel- lant 5 or appellee above 6 provided the wife has no means T and the See the opinion of Walker, C.J., in Jeter v. Jeter, 36 Ala. 391. 1. Taylors'. Taylor, 25 Ohio St. 71; Earp v. Earp, i Jones Eq. (N. Car.) 120; Taylor v. Taylor, I Jones (N. Car.) 528; Schonwald v. Schonwald, Phil. Eq. (N. Car.) 215; Webber v. Webber, 79 N. Car. 572;' Gordon v. Gordon, 88 N. Car. 45, 43 Am. Rep. 729; Collins v. Collins, 71 N. Y. 269; Call v. Call, 65 Me. 407, where it was said: "Obviously the object of this provision is to provide for the imme- diate wants of the wife. The allow- ance of exceptions to such an order, and the delay that would be thereby occasioned, would in many cases leave the wife to starve, or force her to be- come a public charge, or to accept sup- port at the hand of charity. Such could never have been the intention of the legislature. The court is, there- fore, of the opinion that exceptions to such an order do not lie; and that the exceptions in this case should not have been allowed." Order Committing for Contempt. But although an order awarding tempo- rary alimony is not appealable, an order based thereon, committing de- fendant for contempt for refusal to pay the same, may be reviewed in the court above. Ross v. Ross, 47 Mich. 185. 2. Glenn v. Glenn, 44 Ark. 46; Hecht v. Hecht, 28 Ark. 92; Countzz'. Countz, 30 Ark. 73; In re Finkelstein (Mont., 1893), 34 Pac. Rep. 847; States. Second Judicial District Court (Mont., 1894), 36 Pac. Rep. 757; State v. Seddon, 93 Mo. 520; Daniels v. Daniels, 9 Colo. 133; Sharon v. Sharon, 67 Cal. 185; Lochnane v. Lochnane. 78 Ky. 467, where the court said : "That an ap- peal may be taken from a decree mak- ing an allowance to support the wife pending a suit for divorce cannot now be questioned. It possesses all the essential elements of a final judgment. It may be enforced by rule or execu- tion, and is in every respect indepen- dent of the final determination of the court as to the rights o'f the party in regard to the question of divorce." So it was held in Leslie v. Leslie, 6 Abb. Pr. N. S. (N. Y. C. PI.) 193, that an order which imposes the payment of money absolutely, as an order for temporary alimony, is one which affects a "substantial right," and was therefore appealable under the terms of the statute. Abbey v. Abbey, 6 How. Pr. (N. Y. Supreme Ct.) 340, note; Moncrief v. Moncrief, 10 Abb. Pr. (N. Y. Supreme Ct.) 315, and Grif- fin v. Griffin, 23 How. Pr. (N. Y. Su- preme Ct.) 189, apparently overruled. An appeal lies from an order award- ing counsel fees without waiting for final judgment. Traylor v. Richard- son, 2 Ind. App. 452. Or from an order awarding costs and counsel fees, even when asked for appeal. Rohrback v. Rohrback, 75 Md. 317. But an order for temporary alimony and counsel fees cannot be reviewed on an appeal from a judgment decree- ing a divorce. Sharon v. Sharon, 67 Cal. 185. 3. See cases in the notes infra. 4. Whitmore v. Whitmore, 49 Mich. 417; Disborough v. Disborough (N. J., 1893), 28 Atl. Rep. 3, where the court said : " When an appeal is taken in good faith by a wife, whether she was complainant or defendant below, the expense must be borne by the hus- band when it appears that the appel- lant is otherwise without the means to prosecute her appeal." But the wife must make a fresh ap- plication for this allowance. Wood v. Wood, 7 Lans. (N. Y.) 205. 5. Van Voorhis v. Van Voorhis, 90 Mich. 276; Chaffee v. Chaffee, 14 Mich. 463; Whitmore v. Whitmore, 49 Mich. 417; Holthoefer v. Holthoefer, 47 Mich. 643; Pleyte v. Pleyte, 15 Colo. 125- 6. Rohrback v. Rohrback, 75 Md. 317; McBride v. McBride, 119 N. Y. 519, 55 Hun. (N. Y.)4Oi. 7. Disborough v. Disborough (N. J., 1893), 28 Atl. Rep. 3; Clarkson v.. 448 Procedure ALIMONY. Appeals. appeal is made in good faith 1 and its merits are at least doubtful. 3 But where the appeal is obviously without merits, 3 or appears frivolous or vexatious, 4 or the wife has been guilty of laches, 5 or the court is ieft in doubt as to the ability of the husband to pay any greater amount, 6 no extra allowance will be made. Grant by Appellate Court. Temporary alimony and counsel fees may be granted by the appellate court pending an appeal, 7 but the usual practice is that this shall be done by the trial court, 8 which is deemed still to have sufficient jurisdiction for this pur- pose as long as the action is pending, 9 i. e., while the appeal is Clarkson, 20 Mo. App. 94; Pleyte v. Pleyte, 15 Colo. 125. See Grant v. Grant (S. Dak., 1894), 57 N. W. Rep. 1130; Becker v. Becker, 15 111. App. 247. 1. Zeigenfuss v. Zeigenfuss, 21 Mich. 414; Goldsmith v. Goldsmith, 6 Mich. 285; Holthoefer v. Holthoefer, 47 Mich. 643; Van Voorhis v. Van Voorhis, 90 Mich. 276. Certificate of Counsel. It seems that there should be a certificate of coun- sel, being members of the bar in good standing, or other showing made by them to this effect. Van Voorhis v. Van Voorhis, 90 Mich. 276; Holthoefer v. Holthoefer, 47 Mich. 643. Good Conduct of Wife Fending Appeal. But an allowance of alimony already granted has been rescinded on proof by affidavits that the wife has been guilty of repeated acts of adultery pending appeal. Goldsmith v. Gold- smith, 6 Mich. 285. 2. Clarkson -u. Clarkson, 20 Mo. App. 94; Pleyte v. Pleyte, 15 Colo. 125. 3. Friend v. Friend, 65 Wis. 412; Krause v. Krause, 23 Wis. 354. 4. Jones v. Jones, L. R. 2 P. & M. 333- 5. Jones v. Jones, L. R. 2 P. & M. 333; Loveden v. Loveden, i Phillim. 208. 6. Grant v. Grant (S. Dak., 1894), 57 N. W. Rep. 1130. 7. Chaffee v. Chaffee, 14 Mich. 463; Krause v. Krause, 23 Wis. 354; Gold- smith -v. Goldsmith, 6 Mich. 285; Zei- genfuss v. Zeigenfuss, 21 Mich. 417; Holthoefer v. Holthoefer, 47 Mich. 643; Whitmore v. Whitmore, 49 Mich. 417; Grant v. Grant (S. Dak., 1894), 57 N. W. Rep. 1130 ; Clarkson v. Clarkson, 20 Mo. App. 94; Pleyte v. Pleyte, 15 Colo. 125; Van Voorhis v. Van Voorhis, 90 Mich. 276; Lake v, Lake, 16 Nev. 363; Lake v. Lake, 17 Nev. 230. In Discretion of Court. Though in such case the award seems to be en- tirely within the discretion of the court, even where there is a certificate or other showing of counsel that the appeal is taken in good faith. Holt- hoefer v. Holthoefer, 47 Mich. 643. And it will not be granted before the return of the appeal bond where the wife is defendant and the decree is against her. Whitmore v. Whitmore, 49 Mich. 417. 8. Ex p. King, 27 Ala. 387; Jones v. Jones, L. R. 2 P. & M. 333; Rohrback v. Rohrback, 75 Md. 317; Bohnert v. Bohnert, 91 Cal. 428; Storke v. Storke, 99 Cal. 621; Razor v. Razor, 42 111. App. 504; State v. St. Louis Court, 99 Mo. 216; State v. St. Louis Court, 88 Mo. 135; State v. Seddon, 93 Mo. 520; Peavey v. Peavey, 76 Iowa 443; Miller v. Miller, 43 Iowa 325 ; Jenkins v. Jenkins, 91 111. 167. See also Butler v. Butler, 15 P. D. 13. After Appeal Perfected. Though pos- sibly the trial court does not have this right after the appeal has been per- fected. Lake v. Lake, 17 Nev. 238; State v. Seddon, 93 Mo. 522; Cralle v. Cralle, 81 Va. 773. And where an ad- ditional allowance had been made by the trial court to meet the expenses of appeal, but the appeal had not been perfected, it was held that the appeal had been abandoned, and that the al- lowance should be set aside. Peavey v. Peavey, 76 Iowa 443. 9. Reilly v. Reilly, 60 Cal. 624. It was held in Ross v. Griffin, 53 Mich. 5, that, pending an appeal from an order of commitment for contempt, the trial court still had sufficient juris- diction over the parties to make a further order of the same kind upon the defendant's subsequent refusal to pay alimony after the appeal had been taken. Contra.-^- Cralle v. Cralle, 81 Va. 773, where it was held that, pending an ap- i Encyc. PI. & Pr. 29. 449 Suit Honey, Counsel Fees, ALIMONY. and Costs. undetermined ; * and it has been held in several jurisdictions that where no application for temporary alimony has been made in the trial court, it cannot for the first time be made in the higher tribunal on appeal. 2 An Order Modifying a Decree for permanent alimony is appealable. 3 Collateral Attack. An allowance of alimony should be appealed from and not attacked collaterally. 4 IV. SUIT MONEY, COUNSEL FEES, AND COSTS 1. Definitions. At the time of granting alimony pendente lite the court frequently awards, on the application of the wife, in addition to that allow- ance, a certain sum to enable the wife to employ counsel counsel fees 5 and a further amount to be used in meeting the necessary expenses of the litigation. 6 This latter is called suit money in peal which had been perfected by giv- ing bond, the trial court could not de- cree temporary alimony; that the only orders it had power to make during such time were those necessary to preserve the rent in litigation, and that where the amount thus erro- neously decreed was less than the mini- mum jurisdictional sum of the appel- late court, the remedy was by writ of prohibition from the appellate court to the execution of the decree. See also State v. Seddon, 93 Mo. 520. 1. McBride v. McBride, 55 Hun (N. Y.) 401, affirmed in 119 N. Y. 519, the court citing and relying on Beadleston v. Beadleston, 103 N. Y. 402, and over- ruling Winton v. Winton, 31 Hun (N. Y.)20X>. 2. Hunter v. Hunter, 100 111. 477; Reilly v . Reilly, 60 Cal. 624; State v. St. Louis Court, 99 Mo. 216; State v. St. Louis Court, 88 Mo. 135; States. Sed- don, 93 Mo. 520, where the court said: "The decree having been appealed from, the suit is still pending, and the Circuit Court had power to make the order allowing alimony pending the suit in the appellate court, pending the application for an appeal in the divorce suit, and before such appeal was perfected. It was the only court having juridiction to make such order, and it would have had no such juris- diction after the appeal had been per- fected." States. Seddon, 93 Mo. 522. See Cralle v. Cralle, 81 Va. 773. 3. Stillman v. Stillman, 99 111. 196, 39 Am. Rep. 21. 4. Taylor v. Gladwin, 40 Mich. 232. Minor Points connected with the sub- ject of appeals will be found decided in the following list of cases. They will not admit of separate amplifica- tion. Edwards v. Edwards, 80 Ala. 97; Chaffee v. Chaffee, 14 Mich. 463; Ex p. King, 27 Ala. 387; Froman v. Froman, 53 Mich. 581 ; Walsh v. Walsh (Buffalo Super. Ct.), 24 N. Y. Supp. 335; Jenkins v. Jenkins, 91 111. 167; Mullin v. Mullin, 60 N. H. 16: Mclntire v. Mclntire, 80 Mo. 470; Moe v. Moe, 39 Wis. 308; Ex p. Cottrell, 59 Cal. 417; Ex p. Cottrell, 59 Cal. 420; Dow v. Blake, 148 111. 76; Galusha v. Galusha, 108 N. Y. 114; Robertson v. Robertson, i Edw. Ch. (N. Y.) 360; Collins v. Collins, 71 N. Y. 269. 5. Cooke v. Newell, 40 Conn. 596; Sprayberry v. Merk, 30 Ga. 81, 76 Am. Dec. 637; Glenn v. Hill, 50 Ga. 94; Dow -v. Eyster, 79 111. 254; Petrie v. People, 40 111. 334; Ray v. Adden, 50 N. H. 82, 9 Am. Rep. 175; Dorsey v. Goodenow, Wright (Ohio) 120; Wing v. Hurlburt, 15 Vt. 607, 40 Am. Dec. 695; Sumner v. Sumner, 54 Wis. 642. 6. D'Aiguilar v. D'Aigular, I Hagg. Ecc. 773, 3 Eng. Ecc. 338; Belcher v. Belcher, I Curt. Ecc. 444, 6 Eng. Ecc. 372; Holmes v. Holmes, 2 Lee 90, 6 Eng. Ecc. 49; Fitzgerald v. Fitzgerald, i Lee 649, 5 Eng. Ecc. 472; Bird v. Bird, i Lee 572, 5 Eng. Ecc. 455; Cook v. Walton, 38 Ind. 228; Call v. Call, 65 Me. 407; Daiger v. Daiger, 2 Md. Ch. 335; Coles v. Coles, 2 Md. Ch. 341; Tayman v. Tayman, 2 Md. Ch. 393; Goldsmith v. Goldsmith, 6 Mich. 285; Mix v. Mix, i Johns. Ch. (N. Y.) 108; North v. North, i Barb. Ch. (N. Y.) 241, 43 Am. Dec. 778; Kendall v. Ken- dall, i Barb. Ch. (N. Y.) 610; Smith v. Smith, 3 Oregon 363; Graves v. Cole, 19 Pa. St. 171; Waldron v. Waldron, 55 Pa. St. 231; Thompson v. Thomp- son, 3 Head (Tenn.) 527; Moe v. Moe, 39 Wis. 308. 45 Suit Money, Counsel Fees, ALIMONY. and Costs. this country, though in England it is usually termed costs. 1 But the word "costs" with us is commonly and properly applied to the necessary and legitimate charges of the suit which are taxed by the proper officer of the court, and which one or both of the parties must settle. 2 Costs in this, the ordinary American sense, bear, therefore, a character entirely different from that of suit money. 2. Suit Money. Suit money and counsel fees are awarded on the same principles as those which govern the granting of alimony pendente lite, 3 and so it has been universally held by the English courts, 4 as well as by most of those in our own country, 5 that this allowance to a wife is a common-law right and grantable without statutory aid. 6 The term "alimony" (temporary) in this country is frequently but incor- rectly used to designate the whole al- lowance granted to a wife, meaning thereby both suit money and counsel fees, as well as the award for her sup- port, which latter is alone alimony in the proper sense. 2 Bish. on M., D., & S. 907. The terms will be correctly applied, so far as possible, in the fol- lowing sections. 1. 2 Bish. on M., D., & S. 810, 907, 973; Bird v. Bird, i Lee 572, 5 Eng. Ecc. 455; Fitzgerald v. Fitzgerald, I Lee 649, 5 Eng. Ecc. 472; Furst v. Furst, Poynter on M. & D. 260, note; Davis v. Davis, Poynter on M. & D. 261, note; Weber v. Weber, i Swab. & T. 219. The term costs, as used in England, seems to designate sometimes suit money, sometimes what is termed costs with us. See cases supra. 2. 2 Bish. on M., D., & S. 810-820; Stewart on M. & D. 398. 3. Dorsey v. Goodenow, Wright (Ohio) 120; North v. North, i Barb. Ch. (N. Y.) 241, 43 Am. Dec. 778; Tayman v. Tayman, 2 Md. Ch. 393; Am. & Eng. Ency. Law, tit. ALIMONY. Rhode Island. But suit money has been refused in this state, there being no precedent f jr an application of the kind, although it appears that tempo- rary alimony would be allowable. Sanford v. Sanford, 2 R. I. 64. A statute subsequently gave power to award suit money. Thayer v. Thayer, 9 R. I. 377. 4. D'Aguilar v. D'Aguilar, i Hagg. Ecc. 773, 3 Eng. Ecc. 329; Belcher v. Belcher, i Curt. Ecc. 444, 6 Eng. Ecc. 372; Holmes v. Holmes, 2 Lee 90, 6 Eng. Ecc. 49; Fitzgerald v. Fitzgerald, i Lee 649, 5 Eng. Ecc. 472; Bird v. Bird, i Lee 572, 5 Eng. Ecc. 455. 5. Story v. Story, Walk. (Mich.) 421; Daiger v. Daiger, 2 Md. Ch. 335; Coles V. Coles, 2 Md. Ch. 341; Tayman v. Tayman, 2 Md. Ch. 393; Waldron v. Waldron, 55 Pa. St. 231; Thompson v. Thompson, 3 Head (Tenn.) 527; State v. St. Louis Court, 88 Mo. 135; Wes- terfield v. Westerfield, 36 N. J. Eq. 195; Powers' Appeal, 120 Pa. St. 320; Wag- ner v. Wagner, 36 Minn. 239; Larkin v. Larkin, 71 Cal. 330; Collins v. Col- lins, 80 N. Y. i; McCurley v. Mc- Curley, 60 Md. 185, 45 Am. Rep. 717 ; Black v. Black, 5 Mont. 15 ; Dawson v. Dawson, 37 Mo. App. 207 ; Wuest v. Wuest, 17 Nev. 217 ; Lake v. Lake, 17 Nev. 230; Lake v. Lake, 16 Nev. 367, where the court said : "At common law a wife desti- tute of means was entitled to an allow- ance sufficient to enable her to defray the expenses in the suit. The power to make such allowance was considered incident to divorce suits, and the allow- ance appears to have been made as frequently as circumstances-required." Citing Graves v. Cole, 19 Pa. St. 173. 6. Conflicting Decisions. There are a few cases which hold that an allow- ance for temporary alimony and suit money cannot be granted without statutory authority. Wilson v. Wil- son, 2 Dev. & B. (N. Car.) 377; Har- rington v. Harrington, 10 Vt. 505; Hazen v. Hazen, 19 Vt. 603; Shannon v. Shannon, 2 Gray (Mass.) 285. But legislation has in nearly all such cases subsequently conferred the jurisdic- tion. Extension of Doctrine. The doctrine of suit money has sometimes obtained in suits other than for divorce, as in 451 Suit Money, Counsel Fees, ALIMONY. and Costs, Of What it Consists. It is usually a sum in gross designed to meet all expenses, usual or unusual, 1 to which the wife may be put in prosecuting or defending the suit, 8 including therein the fees of witnesses, 3 and even a reasonable amount for investigating and acquiring information as to the circumstances of the case. 4 When Made. Like temporary alimony, 5 this allowance will only be made where the wife is in need; 6 and it will not be granted where she has a separate estate, 7 at least until that is exhausted, 8 the husband being required to make up the deficiency. 9 The Entire Object is to do justice to both parties, and in one way or another to adjust expenses and costs so as to accomplish this end. 10 On Final Hearing. And where allowances for suit money are not made pending the suit, 11 they maybe allowed on final hearing and subsequently taxed in the bill of costs, 12 generally even where the wife fails, 13 although sometimes in such case they will not be al- lowed. 14 the case of a bill filed by wife to en- force her husband's agreement to make a marriage settlement. Wilson v. Wilson, I Desaus. Eq. (S. Car.) 225. 1. So, where a decree was reopened and wife allowed to defend, it appear- ing that husband had induced his wife to go into another state so that he might obtain a divorce in her absence, an order was entered requiring him to provide the expenses of her return, though the order was required to con- tain provisions against diverting the money to any other purpose. Smith v. Smith, 3 Oregon 363. 2. Cook v. Walton, 38 Ind. 228; Dorsey v. Goodenow, Wright (Ohio) 120; Smith v. Smith, 3 Oregon 363; Waldron v. Waldron, 55 Pa. St. 231; Sumner v. Sumner, 54 Wis. 642. 3. Graves v. Cole, 19 Pa. St. 171; Allen v. Allen, 2 Swab. & T. 107. But see Dent v. Dent, L. R. i P. & M. 125. 4. Allen v. Allen, 2 Swab. & T. in. See Sumner v. Sumner, 54 Wis. 642. 5. Ante, p. 421, note 6. 6. Kenemer v. Kenemer, 26 Ind. 330; Coad v. Coad, 40 Wis. 392; Campbell v. Campbell, 73 Iowa 482; Tayman v. Tayman, 2 Md. Ch. 393. 7. Thompson v. Thompson, 3 Head (Tenn.) 527; Westerfield v. Wester- field, 36 N. J. Eq. 195; Maxwell v. Maxwell, 28 Hun (N. Y.) 566; Fyler v. Fyler, Deane & S. 175; Daiger v. Daiger, 2 Md. Ch. 335; Coles v. Coles, 2 Md. Ch. 341. 8. Porter v. Porter, 41 Miss. 116; Eaton v. Eaton, L. R. 2 P. & M. 51. 9. Belcher v. Belcher, i Curt. Ecc. 444, 6 Eng. Ecc. 372; Logan v. Logan, 2 B. Mon. (Ky.) 142; Collins v. Col- lins, 2 Paige (N. Y.) 9; Rose v. Rose, ii Paige (N. Y.) 166. 10. Phillips v. Phillips, 27 Wis. 252; Weaver v. Weaver, 33 Ga. 172; Kittle v. Kittle, 8 Daly (N. Y.) 72; Clark v. Clark, 4 Swab. & T. in; Nicholson v. Nicholson, 3 Swab. & T. 214; Pow- ell v. Powell, L. R. 3 P. & M. 186; Ling v. Ling, i Swab. & T. 180; Milne v. Milne, L. R. 2 P. & M. 202; Whit- more v. Whitmore, L. R. i P. & M. 96; Dent v. Dent, L. R. I P. & M. 125; Carstairs v. Carstairs, 3 Swab. & T. 538; Heal v. Heal, L. R. I P. & M. 300. 11. Weber v. Weber, I Swab. & T. 219. 12. Griffin v. Griffin, 47 N. Y. 134; Williams v. Monroe, 18 B. Mon. (Ky.) 514; Ricketts v. Rickets, 4 Gill (Md.) 105; Ellaytt v. Ellaytt, 3 Swab. & T. 504; Hall v. Hall, 3 Swab. & T. 390. 13. Post, p. 456, note i. 14. Fyler v. Fyler, Deane & S. 175; Keats v. Keats, i Swab. & T. 334; Heal v. Heal, L. R. i P. & M. 300. And it was held in Wagner v. Wagner, 34 Minn. 441, that no counsel fees or expenses could be granted to wife after termination of the suit by judg- ment against her on the merits, even though there were an agreement that this question should be heard and de- termined after judgment. 452 Salt Money, Counsel Fees, ALIMONY. and Costs. Discretion of Court. But the whole matter is within the discretion of the court, which will not be reviewed unless an abuse thereof is shown. 1 3. Counsel Fees. Since a wife can neither bind herself nor her husband to pay for her legal assistance, 2 she would, unless she had means of her own, be utterly unable to prosecute or defend her rights in a divorce suit without the assistance of the court. Of necessity, therefore, the court will award her a suitable sum to enable her to employ counsel. 3 This is granted on her applica- tion, 4 generally at the time of awarding temporary alimony, 5 although it may be done on final decree, in which case the allow- ance is more in the nature of costs, and is usually taxed there- with. 6 1. Campbell v. Campbell, 73 Iowa 482; Sharon v. Sharon, 75 Cal. i; Small v. Small, 42 Iowa in; Harrison v. Harrison, 49 Mich. 240; Sumner v. Sumner, 54 Miss. 642. But see Call v. Call, 65 Me. 407. To Whom Suit Money Paid. Suit money must be directed to be paid to the wife alone; the court has no power to order it paid to her attorneys. Sharon v. Sharon, 75 Cal. i; Parker v. Parker (Miss., 1893), 14 So. Rep. 459. Various Doctrines of minor impor- tance obtain with regard to suit money, but they have been discussed in con- nection with temporary alimony under their proper headings, such as Juris- diction, Pleadings, Appeals, etc., to which reference must be made. 2. Am. & Eng. Ency. Law, tit. ALI- MONY. 3. Waldron v. Waldron, 55 Pa. St. 231. 4. Creamer v. Creamer, 36 Ga. 618; Tayman v. Tayman, 2 Md. Ch. 393; Mercer v. Mercer (Supreme Ct.) 25 N. Y. Supp. 867.- In Illinois the application may be made by counsel. McCulloch v. Mur- phy, 45 111. 256. 5. Cooke v. Newell, 40 Conn. 596; Sprayberry v. Merk, 30 Ga. 81, 76 Am. Dec. 637; Glenn v. Hill, 50 Ga. 94; Dow v. Eyster, 79 111. 254; Petrie v. People, 40 111. 334; Ray v. Adden, 50 N. H. 82, 9 Am. Rep. 175; Dorsey v. Goodenow, Wright (Ohio) 120; Sum- ner v. Sumner, 54 Wis. 642. Where the order allowing temporary alimony is silent on the point, it will be presumed that an allowance for counsel fees was included in the amount. Bauman v. Bauman, 18 Ark. 320, 68 Am. Dec. 171. See Waters v. Waters, 49 Mo. 385. To Whom Paid. But the allowance should be directed to be paid to wife, not counsel. Parker v. Parker (Miss., 1893), 14 So. Rep. 459; Sharon v. Sharon, 75 Cal. i; Tayman v. Tayman, 2 Md. Ch. 393. And the court has no authority to decree to counsel a tract of land in payment of his counsel fees. Firman v. Firman, 109 111. 63. 6. Williams v. Monroe, 18 B. Mon. (Ky.) 514; Thorndike v. Thorndike, i Wash. Ter. 175; Ricketts v. Ricketts, 4 Gill (Md.) 105; Graves v. Graves, 2 Paige (N. Y.) 62. Lowell v. Lowell, 55 Cal. 316; Meyar v . Meyar. 3 Mete. (Ky.) 298; Weaver v. Weaver, 33 Ga. 172; Harrell v. Harrell, 39 Ind. 185; Dugan v. Dugan, i Duv. (Ky.) 289. See Thompson v. Thompson, 3 Head (Tenn.) 527; Waters v. Waters, 49 Mo. 385. Contra, Mercer v. Mercer (Su- preme Ct.), 25 N. Y. Supp. 867. Dismissal of Divorce Suit During Va- cation. Notwithstanding a dismissal of a suit for divorce by the plaintiff in person during vacation, under Ind. Rev. Sts. 1881, 334, the court re- tains a general power over the case until final judgment sufficient to com- pel the husband to pay the wife's at- torney's fees. Courtney v. Courtney (Ind. App.), 30 N. E. Rep. 914. New York. But it seems that in this state an allowance for counsel fees and expenses cannot be made on final judgment certainly not for past ex- penses. Beadleston v. Beadleston, 103 N. Y. 402; Straus v. Straus, 67 Hun (N. Y.) 491; McCarthy v. McCarthy, 137 N. Y. 500; Pountney v. Pountney (Supreme Ct.), 10 N. Y. Supp. 192. So an allowance for past services of counsel will not be granted, although it is shown that counsel are unwilling to act further without it, as such state- 453 Salt Money, Counsel Fees, ALIMONY. and Costs. The Amount allowed should be reasonable, 1 depending somewhat on the wealth of the husband, 3 the character of the services to be performed, 3 and the practice of the court. 4 The Number of Attorneys permitted will depend on the character of the case 5 and the practice of the court ; 6 the wife not having power to employ as many as she pleases and make the husband pay for them. 7 No Proof is Necessary to help the court fix the amount of counsel fees. 8 When Allowance Refused. The allowance will not be made where the woman admits her guilt, 9 where the bill is not good upon its face, 10 or where her counsel are faithfully acting on a contingent fee. 11 ment does not show that payment is necessary in order that plaintiff may further maintain and prosecute her rights. Emerson v. Emerson (Su- preme Ct.), 26 N. Y. Supp. 292. But see McBride v. McBride, 53 Hun (N.Y.) 448. 1. Parker v. Parker (Miss., 1893), 14 So. Rep. 459; Baldwin v. Baldwin, 6 Gray (Mass.) 341; Dugan v. Dugan, i Duv. (Ky.)28g; Blake v. Blake, 70 111. 628; Chaffee v. Chaffee, 14 Mich. 463; Graves v. Graves, 2 Paige (N. Y.) 62; Jeter v. Jeter, 36 Ala. 391; Sharon v. Sharon, 75 Cal. i. 2. Blair v. Blair, 74 Iowa 311. But the court may base its allowance solely on the husband's ability to earn money. Peyre v. Peyre, 79 Cal. 336. 3. Blair v. Blair, 74 Iowa 311; Bald- win v. Baldwin, 6 Gray (Mass.) 341; Williams v. Williams, 29 Wis. 517; Jeter v. Jeter, 36 Ala. 391; Collins v. Collins, 29 Ga. 517, where, the wife having been charged with adultery, the court said: "As nothing can be dearer to a lady than her character for chastity, so nothing could justify greater expense in its defense." 4. Sopwith -v. Sopwith, 2 Swab. & T. 105; Pearson v. Darrington, 32 Ala. 227; Lowell v. Lowell, 55 Cal. 316; Collins v. Collins, 29 Ga. 517; Weaver v. Weaver, 33 Ga. 172; Blake v. Blake, 70 111. 618; Meyar v. Meyar, 3 Mete. (Ky.) 298; Dugan v. Dugan, I Duv. (Ky.) 289; Prescott v. Prescott, 59 Me. 146; Chaffee v. Chaffee, 14 Mich. 463; Waters v. Waters, 49 Mo. 385; De Llamosas v. De Llamosas, 62 N. Y. 618; Thompson v. Thompson, 3 Head (Tenn.) 527; Williams v. Williams, 29 Wis. 517; Coffin v. Dunham, 8 Cush. (Mass.) 404, 54 Am. Dec. 769. 5. Blake?/. Blake, 70 111. 618. 6. Money v. Money, I Spinks 117; Suggate v. Suggate, i Swab & T. 497. 7. Dugan v. Dugan, i Duv. (Ky.) 289; Sharon v. Sharon, 75 Cal. i; Wil- liams v. Williams, 29 Wis. 517. So two counsel will not be allowed for unless it is affirmatively shown that both are necessary; but where they have been already paid the court will not direct a restitution of the money, nor order the same applied to their future services. Uhlman v. Uhlman, 51 N. Y. Super. Ct. 361. 8. Peyre v. Peyre, 79 Cal. 336; De Llamosas v. De Llamosas, 62 N. Y. 618. But see Jeter v. Jeter, 36 Ala. 391; Blair v. Blair, 74 Iowa 311. Where a decree dissolving marriage adjudged the wife $1500 alimony, upon which counsel filed lien for their fees, the court has power to summon the attorneys to determine what lien they may have and what would be a reason- able fee for their services. State z'. Sachs, 3 Wash. 371. 9. Newman v. Newman, 69 111. 167. 10. Phelan v. Phelan, 12 Fla. 449. So they will not be granted to a plain- tiff who, five years after she has procured a divorce in another state, brings another suit against the same person, alleging that the former di- vorce is void. Ober v. Ober (Supreme Ct.), 7 N. Y. Supp. 843. But the wife need not establish that she is entitled to a divorce. If she shows probable grounds and her own need, that is all that is necessary. Jenkins v. Jenkins, 91 111. 167; De Llamosas v. De Llamosas, 62 N. Y. 618. 11. Sharon v. Sharon, 75 Cal. i. But the fact that one of the wife's attor- 454 Suit Money, Counsel Fees, ALIMONY. and Costs. Discretion of Court. Counsel fees, like temporary alimony and suit money, are largely within the discretion of the trial court, and are not reviewable unless this discretion is abused. 1 On Appeal. They are allowable on appeal by the trial, 2 or by the appellate court ; 3 and may be granted to enable a wife to resist a motion to reduce alimony. 4 statutes. This allowance is grantable without statutory aid, 5 but statutes generally provide for it. 6 4. Costs. Costs in the ordinary American sense were unknown to the common law. 7 They are entirely statutory in origin, and are given to the prevailing party in a common-law suit, and gen- erally also in an equity suit, in reimbursement to him of certain ordinary and necessary expenses. This is so also in the divorce suit, wherein costs, in the American sense, may be given to the prevailing party. 8 Costs Against Wife. Costs are usually taxed against the husband, 9 neys has an arrangement for a con- tingent fee does not prevent an allow- ance by the court for the others. White v. White, 86 Cal. 216. 1. Whiter. White, 86 Cal. 212; Still- man -v. Stillman, 99 111. 196, 39 Am. Rep. 21 ; Sharon v. Sharon, 75 Cal. i; Van Wormer v. Van Wormer, 57 Hun (N. Y.) 496; Ex p. Winter, 70 Cal. 291; Thorndike v. Thorndike, I Wash. Ter. 175; Traylor v. Richardson, 2 Ind. App. 452; Jenkins v. Jenkins, 91 111. 167. See Jeter v. Jeter, 36 Ala. 391; De Llamosas v. De Llamosas, 62 N. Y. 618. 2. Shy -v. Shy, 7 Heisk. (Tenn.) 125; Larkin v. Larkin, 71 Cal. 330; Ex p. Winter, 70 Cal. 291. 3. Blair -v. Blair, 74 Iowa 311. 4. Stillman v. Stillman, 99 111. 196, 39 Am. Rep. 21. 5. McGee v. McGee, 10 Ga. 477; Petrie v. People, 40 111. 334; the prin- ciple being the same that governs the grant of temporary alimony or suit- money, viz.: that the allowance is in- cident to divorce and part of the com- mon-law jurisdiction. Dow v. Eyster, 79 111. 254. 6. Jenkins v. Jenkins, 91 111. 167. 7. Am. & Eng. Ency. of Law, tit. COSTS; Turnham v. Shouse, 8 Dana (Ky.) 3, 33 Am. Dec. 473; State v. Kinne, 41 N. H. 238; Hart v. Skin- ner, 16 Vt. 138, 42 Am. Dec. 500. In the ecclesiastical practice the word was used to designate suit money. It seems also to have been used to designate costs in the proper sense. Symons v. Symons, 2 Swab. & T. 435; Kaye v. Kaye, 4 Swab. & T. 239: Beavan z>. Beavan, 2 Swab. & T. 652; Ellayatt v. Ellaytt, 3 Swab. & T. 504. 8. Williamson v. Williamson, i Johns. Ch. (N. Y.)488; Black v. Black, 5 Mont. 15; Thornberry v. Thornberry, 2 J. J. Marsh. (Ky.) 322; Graves v. Graves, 2 Paige (N. Y.) 62; Germond v. Germond, i Paige (N. Y.) 83; Stevens v. Stevens, i Met. (Mass.) 279; Thorndike v. Thorndike, I Wash. Ter. 175; Kendall v. Kendall, i Barb. Ch. (N. Y.) 610; Robinson v. Robinson, 79 Cal. 511. But the word "costs," even in this country, is often inaccurately used, and is sometimes intended to include both counsel fees and suit money, which are frequently allowed on final decree. Stewart on M. & D. 398; Dugan -v. Dugan, i Duv. (Ky.) 289, where it was held that the word "costs," as used in the statute, in- cluded compensation to counsel. See also Kendall v. Kendall, i Barb. Ch. (N. Y.) 610; Germond v. Germond, i Paige (N. Y.) 83; Meyar v. Meyar, 3 Mete. (Ky.) 298; White v. White (Cal., J893), 33 Pac. Rep. 399. But compare Prescott v. Prescott, 59 Me. 146. 9. Word v. Word, 29 Ga. 281, where it was said: "The common law puts alimony, fees to the wife's counsel, and costs all on the same footing, and makes the question who is to pay them depend on the ability to pay them of the parties respectively. As, however, marriage bestows the wife's property on the husband in the ab- 455 Suit Money, Counsel Fees, ALIMONY. and Costs. even where he prevails, 1 unless the wife has a separate estate, 2 or sues by next friend. 3 Discretion of Court. But costs are largely within the discretion of the court, and are given to or withheld from the wife or divided between the parties as circumstances may require, 4 though they sence of a marriage contract, the pre- sumption prima facie is that the hus- band is the only party able to pay Ihem, and consequently the husband is prima facie liable to pay them. This he may rebut by showing that the wife is able to them." Increase of Alimony. Where the wife applies for an increase of alimony and obtains it, she may have her costs in that proceeding. Bursler v. Bursler, 5 Pick. (Mass.) 427. 1. Richardson v. Richardson, 4 Port. (Ala.) 467, 30 Am. Dec. 538; DeRose v. DeRose, Hopk. (N. Y.) 100; Finley v. Finley, 9 Dana (Ky.) 52; Wood v. Wood, 2 Paige (N. Y.)454; Reavis v. Reavis, 2 111. 242; Thatcher v. Thatch- er, 17 111. 66; Sumner v. Sumner, 54 Wis. 642; Newton v. Newton, L. R. n P. D. ii ; McKay v. McKay, 6 Grant's Ch. (U. C.) 380. Contra, Keats v. Keats, I Swab. & T. 334. Yet the husband will not be com- pelled to pay the wife's costs where she is plainly in fault, Dugan v. Du- gan, I Duv. (Ky.) 289; Meyar v. Meyar, 3 Mete. (Ky.) 298; or where it appears on the face of the bill that it is im- properly filed, Wood v. Wood, 2 Paige (N. Y.) 454. See also Shoop's Appeal, 34 Pa. St. 233; De Camp v. De Camp, 2 N. J. Eq. 294; Warren v. Clemence, 44 Conn. 308; Nikirk v. Nikirk, 3 Mete. (Ky.) 432; Dugan v. Dugan, I Duv. (Ky.) 289; Errissman v. Errissman, 25 111. 136; Whipp v, Whipp, 54 N. H. 580; Miller v. Miller, L. R. 2 P. & M. 13; Eldred v. Eldred, 2 Curt. Ecc. 376. Where Probable Cause. But they may be allowed where there was probable cause for instituting the suit. Rich- ardson v. Richardson, 4 Port. (Ala.) 467, 30 Am. Dec. 538. So where an injunction that had been granted was dissolved, costs were allowed the wife on the ground of the reasonableness of the application. Newton v. New- ton, L. R. ii P. D. ii. 2. Balkum v. Kellum, 83 Ala. 449; Dugan v. Dugan, I Duv. (Ky.) 289; Meyar v. Meyar, 3 Mete. (Ky.) 298; Fyler v. Fyler, Deane & S. 175. Of which there must be evidence. Wood v. Wood, 2 Paige (N. Y.) 454. 3. Jones v. Fawcett, 2 Ph. 278; Mosser v. Mosser, 29 Ala. 313; Corne- lius v. Cornelius, 31 Ala. 479; Hughes v. Hughes, 44 Ala. 698; Gray v. Gray, 15 Ala. 779; Ward v. Ward, 2 Dev. Eq. (N. Car.)553; Balkum v. Kellum, 83 Ala. 449; Rose v. Rose, n Paige (N. Y.) 166; Lawrence v. Lawrence, 3 Paige (N. Y.) 267; Jones v. Jones, 2 Barb. Ch. (N. Y.) 146; Richardson v. Rich- ardson, 4 Port. (Ala.) 467, 30 Am. Dec. 538. See also Worden v. Worden, 3 Edw. Ch. (N. Y.) 387. Where Next Friend Insolvent The court can stay proceedings until se- curity is given or a responsible person is substituted, and if this is not done within a reasonable time the bill will be dismissed. Lawrence v. Lawrence, 3 Paige (N. Y.) 267. But see Jones v. Fawcett, 2 Ph. 278; Dowden -v. Hook, 3 Beav. 399. And the wife's applica- tion to change her next friend will not be granted if there is reason to believe that the husband's security for costs will thereby be diminished. Jones v. Fawcett, 2 Ph. 278. See Ward v. Ward, 2 Dev. Eq. (N. Car.) 553. Intruder Taxed with Costs. Where one, not a party to the suit, intru- sively petitions the court to set aside a decree of divorce on the ground of fraud, he may be charged with the proper costs, Simmons v. Simmons, 32 Hun (N. Y.) 551; and even ex- penses and counsel fees, Black v. Black, 5 Mont. 15. But Legal Discretion. Though it is said to be a legal discretion to be exer- cised in accordance with general rules and former precedents, Gray v. Gray, 15 Ala. 779; and will be reversed in a clear case of abuse, Dickerson v. Dick- erson, 26 Neb. 318. But see contra, Prescott v. Prescott, 59 Me. 146. 4. Dickerson v. Dickerson, 26 Neb. 318; Jones v. Jon.es, L. R. 2 P. & M. 333; Prescott v. Prescott, 59 Me. 146; Firman v. Firman, 109 111. 63; Black v. Black, 5 Mont. 15; Wilson v. Wil- son, i Desaus. Eq. (S. Car.) 225; Gray v. Gray, 15 Ala. 779; Mosser v. Mos- 456 Suit Money, Counsel Fees, ALIMONY. and Costs. cannot be awarded against the wife's solicitor, 1 and it seems that the costs of the husband cannot in any case be awarded against the wife. 2 Motion and Decree. A motion for costs may be made after the decree of divorce and alimony. 3 Costs may be collected by proceedings for contempt. 4 ser, 29 Ala. 313; Cornelius v. Cor- nelius, 31 Ala. 479; Hughes v. Hughes, 44 Ala. 698; Soper v. Soper, 29 Mich. 305; Cox v. Cox, 35 Mich. 461; Lap- ham v. Lapham, 40 Mich. 527; Welch v. Welch, 33 Wis. 534; Word v. Word, 29 Ga. 281; Eckhard v. Eckhard, 29 Neb. 457; Beadleston v. Beadleston, (Supreme Ct.) 2 N. Y. Supp. 809; Whitmore v. Whitmore, 49 Mich. 417. 1. Wood v. Wood, 2 Paige (N. Y.) 454- 2. Richardson v. Richardson, 4 Port. (Ala.) 467, 30 Am. Dec. 538, where the court said: "It was mani- festly improper to render any decree against her for costs in a suit prose- cuted against her husband, under any circumstances." 3. Melizet v. Melizet, I Pars. Eq. Cas. (Pa.) 68. But a rule of court requiring a petitioner to pay costs be- fore entry of the decree is unauthor- ized and void. State v. Bates, 5 Ohio Cir. Ct. Rep. 18. 4. Only it seems, however, if it ap- pears that payment cannot be enforced by means of the security given, or by sequestration or execution. Cocke- fair v. Cockefair, 23 Abb. N. Cas. (N. Y. C. PI.) 219. And the husband, by attachment, may be made to give se- curity for his wife's costs. Hepworth v. Hepworth, 2 Swab. & T. 414. 457 ALLOCUTION. See SENTENCE. ALTERNATIVE PLEADINGS. See DEFINITENESS AND CERTAINTY JN PLEADINGS. AMBIGUITY IN PLEADINGS. See DEFINITENESS AND CERTAINTY IN PLEADINGS^ AMENDMENTS. By CHARLES C. MOORE. I. DEFINITION, 462. II. OF PLEADINGS AND PKOCEEDINGS IN EQUITY, 463. 1 . The Cardinal Rule, 463 a. Amendments Discretionary, 463, b. Review of Exercise of Discretion, 464, 2. Of Bills, 466. a. In Respect of Parties, 466. b. In Respect of Matter, 468. (1) In General, 468. (2) Matter Occurring Pending Suit, 471. (3) Jurisdictional Averments, 472. (4) Making a New Case, 472. (a) The R^^le Stated, 472 (b) Tests, wi. (c) Objection, How Taken, 476. (5) Inconsistent or Repugnant Amendments, 476.. (6) Of Sworn Bills, 478. c . At What Stage of Proceedings, 478. (1) Before Issue, 478. (2) After Demurrer, 479. (3) After Plea, 481. (4) After Replication, 482. (5) After Witnesses Examined, 482. (6) After Reference or Master s Report, 483. (7) At the Hearing, 484. (8) After Decree, 487. (9) In Appellate Court, 488. 458 AMENDMENTS. (10) Remand with Leave to Amend, 488. (n) After Remand from Appellate Court, 489. d. Effect of Amendment, 490. (1) Right of Defendant to Plead Anew, 490. (2) Retroactive Effect, 491. (3) Without Prejudice to Injunction, 493. (4) Waiver of Default, 493. (5) Obviating Multifariousness, 494. (6) New Process upon Amendment, 494. 3. Of Demurrers, 494. 4. Of Pleas, 495. 5. Of Replications, 495. 6. O/" Answers, 495. . / General, 495. . Facts Occurring Subsequent to Answer, 499. . Making a New Defense, 499. */. Unconscionable Defenses, 499. ^. .<4/ and After Hearing, 500. 7. Of Master s Report, 501. 8. Of Process, 501. 9. Leave to Amend, 502. . When Necessary, 502. . Application, 503. 10. //0w Amendments are Made, 504. a. Of Bills, 504. . <9/" Answers, 505. 11. Terms, 506. III. OF PLEADINGS AND PEOCEEDINGS AT COMMON LAW AND UNDER CODES AND STATUTES, 508. 1. Power to Amend, 508. a. Inherent, 508. b. Something to Amend or Amend by, 509. c. Relation bet-ween Federal and State Practice, 510. d. Amendment of Jurisdictional Averments, 511. 2. Amendments by Referee, 513. a. Power Wholly Statutory, 513. . C0rtk Provisions, 513. . 77^ Power Concurrent, 514. . Hartford, etc., R. Co., 10 Fed. Rep. 334. 1. Cromwell v. Cunningham, 4 Sandf. Ch. (N. Y.) 384, where the plaintiff, suing to foreclose a mortgage of lands situated in another judicial circuit where all the defendants re- sided, sought to introduce a party as a defendant who resided in the cir- cuit where the suit was brought held, that an order for leave to amend would be null and ineffectual. So where the court had no jurisdic- tion of the case when the original bill was filed, which was for an attach- ment for a purely legal claim, juris- diction could not be conferred by an amended bill. Livey v. Winton, 30 W. Va. 554. 2. Hilliard v. Brevoort, 4 McLean (U.S.) 24. See also Continental Ins. Co. v. Rhoads, 119 U. S. 237; Halsted v. Buster, 119 U. S. 341; Denny v. Pi- roni, 141 U. S. 121. 3. People v. McCaffrey, 75 Mich. US- 4. United States. Shields v. Barrow, 17 How. (U. S.) 130; New Mexico Land Co. v. Elkins, 20 Fed. Rep. 545; Good- year v. Bourn, 3 Blatchf. (U. S.) 266. Vermont. Hill v. Hill, 53 Vt. 578. Mississippi. Wright v. Frank, 61 Miss. 32; Miazza v. Yerger, 53 Miss. 135- West Virginia. Sebornz/. Beckwith, 30 W. Va. 774; Livey v. Winton, 30 W. Va. 554; Piercy v. Beckett, 15 W. Va. 444. Alabama. Scott v. Ware, 64 Ala. 174; Marshall v. Olds, 86 Ala. 296; Glass -v. Glass, 76 Ala. 368; Ward v. Patton, 75 Ala. 207; Howell i>. Motes, 54 Ala. i; Larkins v. Biddle, 21 Ala. 252; Gardner v. Pickett, 46 Ala. 191; Penn v. Spence, 54 Ala. 35; Blackwell v. Blackwell, 33 Ala. 57, 70 Am. Dec. 556; Park v. Lide, 90 Ala. 246; Collins v. Stix, 96 Ala. 338. North Carolina. Tomlinson v. Sav- age, 2 Dev. & B. Eq. (N. Car.) 68. Tennessee. Tappan v. Western, etc., R. Co., 3 Lea (Tenn.) 106. Pennsylvania. Wilhelm's Appeal, 79 Pa. St. 120; Forward School Dist. Appeal, 56 Pa. St. 318. New York. -Verplanck v. Mercantile Ins. Co., i Edw. Ch. (N. Y.)46; Curtis v. Leavitt, n Paige (N. Y.) 386, 4 Edw. Ch. (N. Y.) 246; Lloyd v. Brewster, 4 Paige (N. Y.) 537, 27 Am. Dec. 88; Dodd v. Astor, 2 Barb. Ch. (N. Y.) 395- Michigan. Schafberg v. Schafberg, 52 Mich. 429; Livingston -v. Hayes, 43 Mich. 129; Green v. Green, 26 Mich. 437- Virginia. Shenandoah, etc., R. Co. v. Griffith, 76 Va. 913; Hurt v. Jones, 75 Va. 341; Belton v. Apperson, 26 Gratt. (Va.) 207. 472 Of Pleadings and AMENDMENTS. Proceedings in Equity. tion were within the knowledge of the complainant ; * or where the statutory period of limitation has expired and the defend- ants are entitled to the benefit of it ; a or after the cause is at issue, 3 or referred to a master to take an account, 4 or has been heard or set down for hearing; 5 or after the proofs have been taken and closed. 6 Upon reversing a decree the appellate court will not grant leave to the complainant to amend when the only amendment by which he could obtain relief would be in effect the insti- tution of a new suit upon a different and independent claim or right. 7 New allegations inconsistent with and repugnant to the original bill belong to this class and exceed the province of amend- ment. 8 Georgia. Hart v. Henderson, 66 Ga. 568; Smith v. Ardis, 49 Ga. 602. Massachusetts. Pratt v. Bacon, 10 Pick. (Mass.) 123; Darling v. Roarty, 5 Gray (Mass.) 71; Homer v. Homer, 107 Mass. 82. English. Watts v. Hyde, 2 Ph. 406; Palk v. Clinton, 12 Ves. Jr. 62. Cow- fare Neale v. Neale, 9 Wall. (U. S.) i; Nellis v. Pennock Mfg. Co., 38 Fed. Rep. 379; Oglesby v. Attrill, 14 Fed. Rep. 214. Alternative Belief. While a bill may be framed in a double aspect or in the alternative, or if not so framed origi- nally may by amendment be converted into a bill of that character, this does not authorize the introduction into the bill as originally filed or as amended of several inconsistent claims to relief founded on different states of facts either of which, if true, would entitle the complainant to relief of a wholly different character; but each alterna- tive must be the foundation for like relief or for relief of the same char- acter. Ward v. Patton, 75 Ala. 207. Upon General Demurrer Sustained. Where a demurrer going to the whole merits of a bill is sustained for want of equity, it is not the practice to al- low amendments so as to make a new case with new parties. March v. May- ers, 85 111. 177. Multifarious Amendment. There is no error in disallowing an amendment which would make a bill multifarious. Parsons v. Johnson, 84 Ala. 254; Rog- ers v. Simpson, 10 Heisk. (Tenn.) 655. In Texas amendments introducing a new cause of action are permitted upon payment of costs, and they are open to the defense of the statute of limitations or other proper defense. Henderson v. Kissam, 8 Tex. 46. In Georgia it has been held, under a statute making the allowance of amendments peremptory, that the de- fendant may amend though the result be to destroy his bill, but that in such case he may be turned out of court on demurrer or motion to dismiss. Van- derzer v. McMillan, 28 Ga. 339. In Massachusetts, under special cir- cumstances, a plaintiff was allowed to introduce substantially a new cause of action in Drew v. Beard, 107 Mass. 64. New Case by Amendment to Cross-bill. An amendment to a cross-bill was allowed although it presented a new and independent basis of relief, where the new facts were stated in the com- plainant's original bill and proved by the evidence. Chicago, etc., R. Co. v. Chicago Third Nat. Bank, 134 U. S. 276. 1. Judson -v. Courier Co., 25 Fed. Rep. 705; Walker v. Brown, 45 Miss. 615. 2. Judson v. Courier Co., 25 Fed. Rep. 705; King v. Avery, 37 Ala. 169. 3. Codington v. Mott, 14 N. J. Eq. 430, 82 Am. Dec. 258. 4. Hazard v. Hidden, 14 R. I. 356. 5. Commerce Nat. Bank v. Smith (R. I., 1892), 24 Atl. Rep. 469; Platt v. Squire, 5 Cush. (Mass.) 551; McKinley v. Irvine, 13 Ala. 681; Patterson v. Fowler, 23 Ark. 459. See also Clark v. Keene's First Congregational Soc., 46 N. H. 272. 6. Dodd v. Astor, 2 Barb. Ch. (N. Y.)395- 7. Fenno -v. Coulter, 14 Ark. 38; Cook v. Bronough, 13 Ark. 183; Squire v. Hewlett, 141 Mass. 597; Crabb v. Thomas, 25 Ala. 212. 8. See infra,' ' (5) Inconsistent and Re- pugnant Amendments." 473 Of Pleadings and AMENDMENTS. Proceedings in Equity. (b) Tests. Whether, on the exercise of the right, an amendment falls within the limitations is sometimes a subtle and difficult matter requiring nice discrimination. The usual tests are whether the original and amended bills found the right of complainant to relief on different and inconsistent titles, 1 or upon entirely incon- sistent claims arising out of differing states of facts ; 2 or whether the same defenses are applicable ; 3 or whether the kind or char- 1. Moore v. Alvis, 54 Ala. 356. Changing Fraud to Trust. The origi- nal bill being by a wife who alleged that she had bought property through the agency of her husband, and that he had been deceived as to its value by the vendor, and that she had paid its full value, and praying that the vendor be required to make title to her and be enjoined from interfering with her possession, it could not be amended by alleging that her husband bought the land for himself, but used money belonging to her with the knowledge of the vendor, and praying that she be reimbursed. Hart v. Hen- derson, 66 Ga. 568. Different Titles and Parties. In Mar- shall v. Olds, 86 Ala. 296, the bill sought to enforce a resulting trust in lands, and it was held that an amend- ment asserting title as an heir, and bringing in the other heirs as coplain- tiffs, could not be allowed. Penn v. Spence, 54 Ala. 35, is another instance of departure in amendment by setting up a different title to relief. Changing Express to Resulting Trust. A bill was filed to enforce a trust in certain lands, and alleged an express trust. The complainant was allowed to amend by inserting allegations, from which a trust resulted. Hall v. Cong- don, 56 N. H. 279. A Bill of Review may be amended, it seems, into a bill to impeach a decree for fraud. Massie v. Matthews, 12 Ohio 353. A Bill for Partition may be amended so as to constitute a bill for an ac- count. Hodges v. Pingree, 10 Gray (Mass.) 14. A Bill for the Sale of an infant's lands may be amended into a bill for parti- tion. Watson v. Godwin, 4 Md. Ch. 25- 2. Ward v. Patton, 75 Ala. 207. Charging Administrator Individually. Where a bill was filed against a de- fendant as administrator seeking a decree against him in such representa- tive capacity, a demurrer to an amend- ment charging him individually was sustained. Smith v. Ardis, 49 Ga. 602. Alleging Dissolution of Corporation. After a decision upon a plea to the jurisdiction that a bill between mem- bers of a manufacturing corporation cannot be sustained, the court will not grant leave to amend by averring that the corporation had been dissolved. Pratt v. Bacon, 10 Pick. (Mass.) 123. Creditor's Bill. It is proper to allow a judgment creditor's bill to be amend- ed so as to show that the legal remedy was exhausted. Earle v. Grove, 92 Mich. 285. Joining Wife with Husband. Where the original bill was filed by the husband alone, and sought to enforce a vendor's lien on land for the un- paid purchase-money, evidenced by a promissory note payable to the hus- band, an amended bill may be allowed joining the wife as a complainant and alleging that the land belonged to her separate estate. Pitts v. Powledge, 56 Ala. 147. Mortgage and Vendor's Lien. Where an original bill shows a sale of lands and the execution of a bond to make title to defendant, his entry under the purchase, and his execution of a note therefor reciting that it was given for the purchase-money of the lands, and his failure to pay it, and prays a sale to enforce the vendor's lien; an amend- ment alleging that defendant, being previously indebted to him, gave the note mentioned, and made a deed ab- solute of the lands described in it, to complainant to secure the note, where- upon the latter, as part of the trans- action, gave defendant a bond to make title on payment of the note, and aver- ring that the transaction constituted the deed a mortgage, and praying its foreclosure by sale of such lands is not a departure and does not make a new case. Moore v. Alvis, 54 Ala 356. 3. Park v. Lide, 90 Ala. 246; Cald- well v. King, 76 Ala. 149; Winston v. Mitchell, 93 Ala. 554. Suing in Behalf of a Class. A bill filed 474 Of Pleadings and A MENDMENTS. Proceedings in Equity. acter of relief, not the degree or extent, proper to one state of facts is inappropriate to the other ;* in other words, whether the matters of the original and amended bills could have been prop- erly stated in the alternative in the original bill. 2 in one's own name may be amended by the addition of words sufficient to make it a bill in behalf of a class. Richmond v. Irons, 121 U. S. 27. 1. Rapier v. Gulf City Paper Co., 69 Ala. 476; Park v. Lide, 90 Ala. 246; Baker v. Graves (Ala., 1893), 13 So. Rep. 275; Winston v. Mitchell, 93 Ala. 554; Sanborn v. Sanborn, 7 Gray (Mass.) 142. Seeking Different Belief on Bills for Specific Performance. A bill asking for the specific performance of a contract cannot, after issue joined, be amended so as to charge that the contract was fraudulent and pray that it may be declared void. Codington v. Mott, 14 N. J. Eq. 430, 82 Am. Dec. 258. But in Papin v. Goodrich, 103 111. 86, and Parrill v. McKinley, 9 Gratt. (Va.) I, 58 Am. Dec. 212, the bill was for spe- cific performance, and the plaintiff was permitted to file an amended bill ask- ing for a rescission of the contract. See also Belton v. Apperson, 26 Gratt. (Va.) 207. Upon a bill for the specific perform- ance of a contract for the exchange of lands, if in the progress of the cause it appears that the defendant cannot comply with his contract, the plaintiff may amend and ask for a rescission of the contract and for such other relief as he may be entitled to. Parrill v. McKinley, 9 Gratt. (Va.) i, 58 Am. Dec. 212. Where a bill for the specific perform- ance of a contract of sale was amended by setting up false and fraudulent representations, not discovered to be false until after the filing of the origi- nal bill, and praying for a rescission of the contract, the amendment was held to have been properly allowed. Jefferson v. Kennard, 77 111. 246. The court has no power to allow a bill for specific performance to be amended so as to stand as an action of contract, although a statute provides that suits for specific performance shall be by action of contract. The effect of the statute is to deprive the court of jurisdiction. Darling v, Roarty, 5 Gray (Mass.) 71. Exactly Contrary Relief. In Mayor v. Dry, 2 Sim. & Stu. 113, the plaintiff by his original bill sought to set aside a deed, and after answer was filed amended his bill and, presenting a different state of facts, sought to es- tablish the deed, and such amendment was allowed. Amendment Setting Up a Trust. A wife's land having been sold under a mortgage and bid in by her husband's brother, who afterwards conveyed to the husband, a bill by her heirs charg- ing that he had paid the debt with her money, and that the foreclosure was collusive, cannot, on failure of proof that the mortgage was not a valid and subsisting lien, be amended so as to charge him as having purchased in trust for his wife, and to compel a conveyance on repayment of his ex- penditures in removing the incum- brance. Park v. Lide, 90 Ala. 246. Divorce Bill. A divorce bill cannot be amended by substituting a prayer that the marriage be annulled, Schaf- berg v. Schafberg, 52 Mich. 429; or so as to make a case entirely outside of the issue in the bill, Green v. Green, 26 Mich. 437. A proper amendment to a divorce bill is shown in Grove's Appeal, 37 Pa. St. 443. Equity to Law. A bill in equity can- not be converted by amendment into an action at law. Homer v. Homer, 107 Mass. 82. Law to Equity. Where the court has no jurisdiction of the original cause (an attachment for a purely legal claim), an amended bill cannot be filed to give the court jurisdiction. Livey v. Winton, 30 W. Va. 554. Amendment of Creditor's Bill. Under a bill by a creditor in behalf of him- self and all other creditors of the de- ceased debtor, the complainant cannot by an amended bill ask the foreclosure of a mortgage given to secure his in- dividual debt. Scott v. Ware, 64 Ala. 174. Foreclosure and Cloud on Title. A bill asking for the reformation of a mort- gage and foreclosure thereof may be amended so as to ask for reformation and removal of a cloud on complain- ant's title as mortgagee. Hawkins z/. Pearson, 96 Ala. 369. 2. Ward v. Patton, 75 Ala. 207. 475 Of Pleadings and AMENDMENTS. Proceedings in Equity. (c) Objection How Taken. Where an amendment is offered which is obnoxious to the rule, it may be disallowed j 1 or, if allowed, it may be taken off the files on motion, 2 or demurred to, 3 or the bill may be dismissed without prejudice. 4 (5) Inconsistent or Repugnant Amendments. Matter inconsistent with or repugnant to the substantial allegations of the original bill cannot be introduced by amendment. 5 Ejectment and Foreclosure. A bill in aid of ejectment proceedings cannot be converted into a foreclosure bill by merely substituting an ordinary prayer for foreclosure. Livingston v. Hayes, 43 Mich. 129. Amending Prayer of Bill. A bill may be amended by adding to the prayer for special relief a prayer for general relief. McCrum v. Lee, 38 W. Va. 583. Praying for Discovery. A petition in which discovery is waived may be amended by striking out the waiver and inserting a prayer for discovery. Price v. Price, 90 Ga. 244. Cloud on Title. Where a bill to en- join a foreclosure sale alleged that the mortgagor and mortgagee fraudulent- ly concealed the existence of the mort- gage from the plaintiff when he pur- chased the land, an amendment was allowed as not incompatible which alleged that the mortgage had been satisfied and that the mortgagee held it as a cloud on plaintiff's title. Har- rison v. Yerby (Ala., 1893), 14 So. Rep. 321. 1. Livingston v. Hayes, 43 Mich. 129; Pratt v. Bacon, 10 Pick. (Mass.) 123. 2. Oglesby v. Attrill, 14 Fed. Rep. 214. 3. Ward v. Patton, 75 Ala. 207; Wright v. Frank, 61 Miss. 32, holding that failure to except to an order granting leave to amend does not pre- clude the defendant from questioning the propriety of the amendment by demurrer. Ansley v. Glendenning, 56 Ga. 286; Smith v. Ardis,4g Ga. 602; Scott v. Turley, 9 Lea (Tenn.) 631, 639. Waiver of Objection. That the objec- tion may be waived by answering the amendment, see the case last cited. 4. Tomlinson v. Savage, 2 Dev. & B. Eq. (N. Car.) 68. 5. Ogden v. Moore, 95 Mich. 290; Freeman v. Michigan State Bank, Harr. (Mich.) 311; Hill v. Hill, 53 Vt. 578; Metropolitan Nat. Bank v. St. Louis Dispatch Co., 38 Fed. Rep. 57; Ray v. Womble, 56 Ala. 32; Rumbly v. Stainton, 24 Ala. 712; Howell v. Motes, 54 Ala. i; Winters. Quarles, 43 Ala. 692, holding that repugnancy is ground for demurrer. Seborn v. Beckwith, 30 W. Va. 774; Milton v. Hogue, 4 Ired. Eq. (N. Car.) 415; Cole- man v. Pinkard, 2 Humph. (Tenn.) 185; Bosley v. Phillips, 3 Tenn. Ch. 649. See also Marble v. Bonhotel, 35 111. 240. In Injunction Bills. Repugnant amendments are particularly objec- tionable in injunction bills, where the amendments must be verified. .Hill v. Hill, 53 Vt. 578. Compare Hall v. Fisher, 3 Barb. Ch. (N. Y.) 637. Multifariousness. Leave to file an amendment which makes the bill multifarious may be refused. Parsons v. Johnson, 84 Ala. 254; Rogers v. Simpson, 10 Heisk. (Tenn.) 655. Attacking Deed Admitted as Valid. The complainant, a judgment creditor of a deceased debtor and administra- tor of the estate of the debtor's de- ceased children, filed a bill claiming a distributive share of certain slaves conveyed by the debtor to his children by deed and the subjection of the dis- tributive share to the payment of his debt, and by an amended bill charged that the deed was fraudulent and void. It was held that the amended bill must be dismissed for repugnancy. Cole- man v. Pinkard, 2 Humph. (Tenn.) 185. Denying Validity of Contract Admit- ted. Where an assignee of a chattel mortgage brings an action to foreclose it and to compel parties in possession of part of the property to account for the same, he cannot amend by making his assignors parties, and alleging that they procured him to accept the assignment by fraudulent representa- tions, and praying that it be declared void and that they be required to re- fund to him the money paid therefor, since such amendment would be re- pugnant to the bill. Baker v. Graves (Ala., 1893), 13 So. Rep. 275. 476 Of Pleadings and AMENDMEN TS. Proceedings in Equity. Limitation of the Eule. But in order to be condemned on this ground the inconsistency or repugnancy must relate to the pur- poses of the bill as contradistinguished from a mere modification of the relief sought. 1 Moreover, the facts originally set forth may be wrong, and it may be the legitimate purpose of the amend- ment to rectify the error. 58 Alleging Judgment Void Admitted Valid. When the only occasion for going into equity is that the judg- ment sought to be enjoined is conclu- sive at law in another suit against the complainant, an amendment to the bill, alleging that the judgment is void for want of jurisdiction in the court that rendered it, is demurrable, be- cause it is inconsistent with and de- structive of the original bill. Ansley v. Glendenning, 56 Ga. 286. Contradicting Admission of Existence of Property. In a suit to foreclose a mortgage on tangible property, a good- will, and a share of the stock, the original bill and two amended bills al- leged that the tangible property had been destroyed, and the complainant, therefore, could have no relief in that suit. Held, that leave to file a third amended bill alleging the existence of the tangible property for the purpose of reaching the intangible property should be denied. Metropolitan Nat. Bank v. St. Louis Dispatch Co., 38 Fed. Rep. 57. Contradicting Reliance on Contracts. In Ogden v. Moore, 95 Mich. 290, an original bill to enforce the specific per- formance of an agreement to purchase land alleged a written contract and at the same time an oral agreement reserving a portion of the land from the conveyance, and that complainant relied on the oral agreement and con- sidered it as binding as the written contract. A demurrer was sustained, and plaintiff filed an amended bill, the substantial averment of which was that complainant relied, not on the oral agreement, but on the written contract, and that by mutual mistake the covenant reserving a portion of the land was omitted. Held, that the amendment was repugnant, and that the bill should be dismissed. Effect of Repugnant Amendment. An attachment and injunction sued out under the original bill will not inure to the benefit of an antagonistic right set up by amendment. Bosley v. Phil- lips, 3 Tenn. Ch. 649. In Texas, where the courts allow a new cause of action to be introduced by amendment, if the equity of the amendment be contradictory to that in the original bill, and the relief of a dif- ferent character, the amendment will not affect a purchaser who bought pre- vious to the amendment. Wortham v. Boyd, 66 Tex. 401. Striking Out Contradicted Matter. In Milton v. Hogue, 4 Ired. Eq. (N. Car.) 415, it was held that, where the amendment so contradicts the original bill that no decree can be made, the proper course is to strikeout so much of the original bill as is contradicted. In Oglesby v. Attrill, 14 Fed. Rep. 214, it was held that an inconsistent amendment may be stricken from the files on motion. 1. Cain v. Gimon, 36 Ala. 168; In- graham v. Foster, 31 Ala. 123. See also Hart v. Clark, 54 Ala. 490; Fite v. Ken- namer, 90 Ala. 470. Thus, where a bill seeks the can- cellation of a mortgage for certain al- leged reasons, an amendment may be permitted which sets up other and even inconsistent reasons upon which the same relief is prayed. Hardie v. Bul- ger, 66 Miss. 577. Where an original bill, seeking a set- tlement of a partnership in a steamboat and an ascertainment of the plaintiff's share of the profits, alleged that the plaintiff had sold his interest in the boat to a third person, who was en- titled to his share of the profits accru- ing from the time of the sale, while the amended bill alleged that said trans- fer, though absolute in form, was in- tended only as a mortgage or security held, that the repugnancy was not so great as to render the allowance of the amendment improper, as it simply en- larged the measure of relief. Ingraham v. Foster, 31 Ala. 123. 2. McDougald v. Williford, 14 Ga. 665, where it was said that, to make the amendment objectionable for re- pugnancy or inconsistency, the contra- diction must be such that, retaining the bill, no decree could be rendered. 477 Of Pleadings and AMENDMENTS. Proceedings in Equity. (6) Of Sworn Bills. While the courts always act with great caution in permitting the plaintiff to amend a sworn bill, 1 espe- cially where the purpose is to make repugnant allegations and have relief thereon, 2 such amendments are always allowed to prevent the failure of justice; 3 and where it is manifest that the plaintiff was honestly mistaken as to the facts charged in the bill, an amendment may be allowed. 4 c. AT WHAT STAGE OF PROCEEDINGS (i) Before Issue. According to the ancient practice in chancery, the plaintiff had an unlimited power of amending his bill both before and after an- swer, but before replication, as often as he found it convenient to do so. 5 But this extensive liberty to amend is now frequently 1. Thomas v. Coultas, 76 111. 493; Gregg v. Brower, 67 111. 525; Jones v. Kennicott, 83 111. 484, an application for leave to amend a petition for a ne exeat; Swift v. Eckford, 6 Paige (N. Y.) 22; Verplanck v. Mercantile Ins. Co., i Edw. Ch. (N. Y.) 46; Gunn v. Blair, i Barb. (N. Y.) 5391 West v. Coke, i Murph. (N. Car.) 191; Moly- neaux v. Collier, 13 Ga. 406. 2. Hill v. Hill, 53 Vt. 578. See also Lloyd v. Brevvster, 4 Paige (N. Y.)537, 27 Am. Dec. 88. 3. Gregg v. Brower, 67 111. 525; Thomas v. Coultas, 76 111. 493; Craw- ford v. Paine, 19 Iowa 172. Before Issue. It is of course to allow the plaintiff to amend upon the coming in of the answer, or the making of any other defense, so as to shape the plead- ings for the better development of the plaintiff's case; and this is so when a plea has been filed, and before it has been set for hearing or replied to. Mount Olivet Cemetery Co. v. Budeke, 2 Tenn. Ch. 480. Amending as to Parties and Prayer. In Livingston v. Marshall, 82 Ga. 281, the plaintiff was allowed to amend the prayer of his bill and also to add a new and proper party plaintiff. New Jersey. In Buckley v. Corse, i N. J. Eq. 504, a bill for an account was amended into a bill to redeem, after the dissolution of the injunction granted on the original bill, and a new injunction was granted on the amend- ment. But the propriety of the amend- ment is perhaps doubtful. See Coding- ton v. Mott, 14 N. J. Eq. 433, 82 Am. Dec. 258. In Philhower v. Todd, n N. J. Eq. 312, after hearing upon a motion to dissolve the injunction, and after the delivery of the opinion of the court that the injunction should be dissolved and the bill dismissed for want of equity, the injunction was retained, and the party permitted to amend by altering the frame and averments of his bill. In Henry v. Brown, 8 N. J. Eq. 245, which was also an injunction bill, the complainant was allowed, after her testimony was closed and after the final hearing, to amend her bill, by ad- ding a new party, by changing the prayer for relief, and by so amending the frame of the bill that the proper relief could be administered. See also Codington v. Mott, 14 N. J. Eq. 430, 82 Am. Dec. 258. Changing Statement of Contract. In Lanning v. Heath, 25 N. J. Eq. 425, leave was given to amend an injunc- tion bill, without prejudice to the in- junction, by making the contract set forth in the bill conform to the alleged understanding of the parties. 4. Thomas v. Coultas, 76 111. 493; Hall v. Fisher, 3 Barb. Ch. (N. Y.) 637- 5. i Daniell Ch. Pr. (ist Am. ed.) 535; Story Eq. PI. (loth ed.) 885; Adams v. Phillips, 75 Ala. 461; Buck- leys. Corse, i N. J. Eq. 504; Seymour v. Long Dock Co., 17 N. J. Eq. 169; Droullard v. Baxter, 2 111. 191, where a decree was reversed for refusal to allow an amendment to the bill at that stage. See also McArtee v. Engart, 13 111. 242; Henry v. Travelers' Ins. Co., 45 Fed. Rep. 299; Holland v. Trot- ter, 22 Gratt. (Va.) 136 ; Garner v. Keaton, 13 Ga. 431; Stevens v. Terrel, 3 T. B. Mon. (Ky.) 131; Baldwin v. Love, 2 J. J. Marsh. (Ky.) 489; Grim v. Wheeler, 3 Edw. Ch. (N. Y.) 448; Beekman v. Waters, 3 Johns. Ch. (N. Y.)4io; French v. Shotwell, 4 Johns. 478 Of Pleadings and AMENDMENTS. Proceedings in Equity. regulated by rules of court intended to prevent delay or vexa- tion. 1 (2) After Demurrer. Formerly, upon the allowance of a de- murrer to the whole bill, no subsequent proceedings could be taken in the cause. 2 Ch. (N. Y.) 505; Hogan v. McFarland, 6 Baxt. (Term.) 104; Grange Ware- house Assoc. -v. Owen, 86 Tenn. 355. Waiving Answer Under Oath. Where no answer had been put in to an injunc- tion bill, leave was granted to amend so as to waive an answer under oath on payment of costs. Bronson v. Green, Walk. (Mich.) 486. Irrelevant Amendment. " When such amendment is made, the court will judge of its relevancy, and if it be im- pertinent or entirely foreign to the cause it will be ordered to be stricken out." Droullard -v. Baxter, 2 111. 192. Setting up Statute of Frauds. In Mc- Artee v. Engart, 13 111. 242, it was held that the complainant had a clear right after the coming in of the answer to amend his bill by setting up the Stat- ute of Frauds against the new matter introduced by the answer. To Meet Facts Disclosed by Answer. After the filing of an answer and a cross-bill the plaintiff should be al- lowed to file an amended bill to enable him to present his case in the light of the facts disclosed by the answer and cross-bill. Horn v. Clements (N. J., 1887), 8 Atl. Rep. 530. Injunction Bill. In West v. Coke, i Murph. (N. Car.) 191, it was held that, after an answer to an injunction bill has been filed, the bill cannot be amended before the hearing. Before Appearance. An order to amend the bill obtained before defend- ant's appearance is regular and valid, although the defendant appears before the amendments are actually prepared. Selden -v. Vermilya, 4 Sandf. Ch. (N. Y.) 573- Injunction Bills. The rule of the Ne-w York Court of Chancery allowing amendments of course at any time be- fore answer, plea, or demurrer, was held not to apply to verified injunction bills. Parker v. Grant, i Johns. Ch. (N. Y.) 434- 1. See, for the English Orders in Chancery of Apr. 3, 1828, and Nov. 23, 1831, i Daniell Ch. Pr. (ist Am. ed.) 535, 530- Federal Equity Rules. United States Equity Rule 28 provides for amend- ments as of course before answer, plea, or demurrer, requiring payment of costs occasioned thereby if the amendment is material, and a copy of the amendments to be furnished to the defendant. And United States Equity Rule 29 provides that, after an answer or plea or demurrer is put in, and before rep- lication, the plaintiff may upon mo- tion or petition, without notice, obtain an order from any judge of the court to amend his billon or before the next succeeding rule-day upon payment of costs or without payment of costs, as the court or a judge thereof may in his discretion direct. Under this rule the plaintiff is not entitled as of right to amend after a demurrer has been allowed. Mer- cantile Nat. Bank v. Carpenter, 101 U. S. 567. United States Equity Rule 45 de- clares that "no special replication to any answer shall be filed, but if any matter allowed in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court 'or a judge thereof may in his discretion direct." In a suit for the infringement of a patent, if the defendant sets up a license, it is proper for the plaintiff to allege by amendment of the bill the abandonment of the license. Wilson v. Stolley, 4 McLean (U. S.) 275. Objection to an amendment because leave was not obtained cannot be made for the first time in the appellate court. Clements v. Moore, 6 Wall. (U. S.) 299. 2. Mercantile Nat. Bank v. Carpen- ter. 101 U. S. 567; Hays v. Heatherly, 36 W. Va. 613. See also Lyon v. Tall- madge, i Johns. Ch. (N. Y.) 184; Mc- Comas v. Minor, Walk. Ch. (Miss.) 513- This is still the rule in Tennessee. Crowder v. Turney, 3 Coldw. (Tenn.) 551, holding, however, that a decree sustaining a demurrer may be vacated during the same term and the plain- tiff permitted to amend. 479 Of Pleadings and AMENDMENTS. Proceedings in Equity. The Old Eule Eelaxed. By virtue of statutory provisions or rules of court or judicial relaxation of the rule, leave to amend is now largely a matter of discretion. 1 Leave Given on Argument. It is usual, on allowing a demurrer for any cause which the court sees on the argument may be obviated by amending the bill, to give leave to amend by paying the costs of the demurrer. 8 Application for Leave. But if it is not plain that the objection on which the demurrer was sustained can be removed, it is necessary for the complainant to apply for leave to amend by petition set- ting forth the additional facts sought to be incorporated in the bill. 3 1. Hiller v. Cotton, 48 Miss. 593. Federal Equity Rule. United States Equity Rule 35 provides that, if upon the hearing any demurrer shall be allowed, " the court may in its discre- tion upon motion of the plaintiff allow him to amend his bill upon such terms as it shall deem reasonable." See Hunt v. Rousmaniere, 2 Mason (U. S.) 342; Dowell v. Applegate, 8 Fed. Rep. 698; Riddle v. Whitehill, 135 U. S. 627. If an amendment is refused the ac- tion of the court will not be reversed on appeal unless the nature of the proposed amendment appears in the record. U. S. v. Atherton, 102 U. S. 375; Mercantile Nat. Bank v. Carpen- ter, 101 U. S. 567. In Alabama the dismissal of a bill on demurrer in vacation, without af- fording the complainant an oppor- tunity to amend, is error. Stouden- mire v. De Bardelaben, 72 Ala. 476; Kingsbury v. Milner, 69 Ala. 502; Little v. Snedecor, 52 Ala. 167. In Georgia, after a decree sustaining a general demurrer for want of equity is affirmed by the Supreme Court, the court below may, before entering judg- ment on the return of the remittitur, allow the plaintiff to amend. King v. King, 45 Ga. 195. But the court below may dismiss the bill if the amendment offered still fails to make a case. Thurmond v. Clark, 47 Ga. 500; Picquet v. Augusta, 64 Ga. 516. 2. Michigan Bank v. Niles, Walk. (Mich.) 398; Hunt v. Rousmaniere, 2 Mason (U. S.) 342. In Cotton -v. Dacey, 61 Fed. Rep. 481, a demurrer to the bill was sus- tained with leave to amend. Want of Prayer for Process. A de- 480 murrer for want of prayer for process and of signature of counsel was sus- tained, with permission to the com- plainant to amend. Wrights. Wright, 8 N. J. Eq. 143- 3. Michigan Bank v. Niles, Walk. (Mich.) 398. In Tennessee, where a demurrer to a part of the bill is sustained, leave may be given to amend at a term subse- quent to that at which the demurrer was sustained. Lookout Bank v. Susong, 90 Tenn. 590. After Demurrer for Laches. Where the trial court sustains a demurrer to the complaint on the ground of laches, and enters a decree dismissing the bill, it is error to refuse to set aside such decree and permit an amendment by the plaintiff fully explaining the apparent laches. Cottrell v. Watkins, 89 Va. Soi. Demurrer in Class Suit. After demur- rer sustained for want of an allegation that plaintiff, a taxpayer suing to re- strain the collection of an illegal tax, filed the bill on behalf of himself and all other taxpayers, the plaintiff was allowed to insert the averment by amendment. Williams v. Grant County Ct.,26 W. Va. 488. Misjoinder of complainant may be cured by amendment after demurrer sustained. Clark v. Holbrook, 146 Mass. 366. Demurrer for Want of Parties. A de- murrer for want of necessary parties being sustained, leave was granted to amend so as to make the proper par- ties. Frazer v. Legare, Bailey Eq. (S. Car.) 389; Barrett v. Doughty, 25 N. J. Eq. 379. See also Dwight v. Humphreys, 3 McLean (U. S.) 104; Young v. Bilderback, 3 N. J. Eq. 206. Demurrer for Multifariousness. Where Of Pleadings and AMENDMENTS. Proceedings in Equity. Review on Appeal. It is not error to omit to give leave to amend upon sustaining a demurrer, where the record does not disclose that any amendment improving the bill could be made, 1 or show in what particulars the party desired to amend. 2 Remand with Leave to Amend. The appellate court, upon reversing a decree overruling a demurrer for want of equity, may remand with leave to complainant to amend. 3 (3) After Plea. Where the defendant has put in a plea, the plaintiff may obtain leave to amend his bill, and if no order has been obtained setting the plea down for argument, such leave is given as a matter of course. 4 And it is said that such an amend- a demurrer for multifariousness is sustained, the plaintiff may, if the de- murrer goes to only part of the bill, leaving others untouched and main- tainable against the defendant, obtain leave to amend by striking out the objectionable parts. McElwee v. Massey, 10 Rich. Eq. (S. Car.) 377; Jefferson v. Gaines, 7 Baxt. (Tenn.) 368. Demurrer for Want of Equity. Where a demurrer going to the whole merits of a bill is sustained for want of equity, it is not the practice to allow amendments which will make a new case with new parties. March v. Mayers, 85 111. 177. See also Lyon v. Tallmadge, i Johns. Ch. 184; Seymour v. Long Dock Co., 17 N. J. Eq. 172. Before Entry of Judgment on Demurrer. It is within the discretion of the court to allow an amendment to the bill after having decided to sustain a demurrer thereto, but before the entry sustaining the demurrer has been made of record. Wray v. Hazlett, I Brewst. (Pa.) 295. Suspending Judgment on Demurrer. In Edison Electric Light Co. v. Mather Electric Light Co., 53 Fed. Rep. 244, after a demurrer was filed for want of certain essential allegations in the bill, the court, without passing upon the demurrer, allowed the complainant to amend upon payment of defendant's reasonable costs. Overruling Demurrer. And in Worth v. Gray, 6 Jones Eq. (N. Car.) 4, the court, under special circumstances, overruled a demurrer in order that the plaintiff might amend. Demurrer to Injunction Bill. Where a demurrer to a petition under oath for an injunction has been sustained, the plaintiff may amend as in other cases. McDonald v. Tirmon, 20 Tex. 245- Before Final Judgment on Demurrer. When a demurrer is filed for want of equity, and defendant desires to amend his bill, the motion should be made before final judgment on the de- murrer. Holliday v. Riordan, 12 Ga. 417. But see McElwee v. Massey, 10 Rich. Eq. (S. Car.) 377, and preceding cases in this note. Laches of Applicant. In Newbury- port Merchants' Bank v. Stevenson, 7 Allen (Mass.) 489, the court declined to allow the plaintiff to amend after sustaining a demurrer, the claim hav- ing become barred by the statute of limitations, and the plaintiff having been dilatory in prosecuting his suit and also in applying for leave to amend. 1. Pickens v. Kniseley, 36 W. Va. 794- 2. U. S. v. Atherton, 102 U. S. 375; Mercantile Nat. Bank v. Carpenter, 101 U. S. 567. Sua sponte. It is not the duty of the chancellor of his own motion and without application to allow plain- tiff to amend. Alexander v. Moye, 38 Miss. 640. 3. Wilburn v. McCalley, 63 Ala. 436. But where a demurrer for want of equity is sustained, the appellate court will not reverse the decree merely to give the plaintiff an oppor- tunity to amend. State Bank v. Ellis, 30 Ala. 478. See also infra, "( IO ) Remand with Leave to Amend." 4. i Daniell Ch. Pr. (ist Am. ed.) 524, but, according to the English practice as therein stated, upon the payment to the defendant of twenty shillings costs. United States Equity Rule 29 pro- vides for the amendment of the bill after plea and before replication, upon motion or petition without notice.with i Encyc. PI. & Pr. 31. 481 Of Pleadings and A MEN DM EN TS. Proceedings in Equity. ment does not have the effect of allowing the plea. 1 After a plea is set down for argument, the plaintiff may have leave to amend his bill. 3 And after the allowance of a plea leave may be given to amend, but not as a matter of course. 3 (4) After Replication By Adding Parties. If the plaintiff has occasion to amend his bill after replication, merely by adding parties, he may obtain leave to do so as a matter of course. 4 Orders of this nature may be obtained without withdrawing the replication. 5 In Substance. But where after replication filed it is intended to amend a bill by the addition of new facts or charges, the proper course is to apply for leave to withdraw the replication and amend. 6 Excuse Must be Shown. And the court will not grant leave to with- draw the replication for the purpose of amending the bill unless the plaintiff shows the materiality of the amendments, and why the matter to be introduced was not stated before. 7 (5) After Witnesses Examined. After witnesses have been ex- amined the court will not, unless under very special circumstances, or in consequence of some subsequent event, allow the bill to be altered or amended. 8 Federal Equity "Rules. United States Equity Rule 29 provides that, "after replication filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amend- ment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause." There is a similar rule of court in Pennsylvania. See Dougherty v. Mur- phy, 10 Phila. (Pa.) 509, where an amendment was refused for want oj a sufficient showing of diligence. Where an amendment was proposed and allowed in open court in the pres- ence of the parties, it is to be pre- sumed, as against a subsequent ob- jection to the amendment, that it was allowed upon a sufficient compliance with the rule. Mills v. Scott, 43 Fed. Rep. 452. Leave may be denied on the ground of laches in making the application. Jones v. Welling, 16 Fed. Rep. 655; Vertner v. Griffith, Walk. Ch. (Miss.) 414; Marrz/. Wilson, 2 Lea(Tenn.)23i. 8. Story Eq. PI. (roth ed.) 887; i or without costs in the discretion of the court. After the statute of limitations has been pleaded, the plaintiff may be al- lowed to amend his bill so as to avoid the plea. Wharton v. Lowrey, 2 Dall. (U.S.) 364. 1. Story Eq. PI. (roth ed.) 891. 2. i Daniell Ch. Pr. (ist Am. ed.) 525. See also Cook v. Mancius, 3 Johns. Ch. (N. Y.) 427. 3. i Daniell Ch. Pr. (ist Am. ed.) 525. United States Equity Rule 35 provides that, if upon the hearing a plea is al- lowed, the court may in its discretion allow the plaintiff to amend upon such terms as it shall deem reasonable. 4. i Daniell Ch. Pr. (ist Am. ed.) 544- 5. i Daniell Ch. Pr. (ist Am. ed.) 544; Brattle v. Waterman, 4 Sim. 125; Andree v. , 2 Dick. 768. 6. i Daniell Ch. Pr. (ist Am. ed.) 545; Thorn v. Germand, 4 Johns. Ch. (N. Y.) 363- The rule requiring the replication to be withdrawn before amendment of the bill can be allowed, relates only to material amendments. Moshier v. Knox College, 32 111. 155. 7. Brown v. Ricketts, 2 Johns. Ch. (N. Y.) 425; Dougherty v. Murphy, 10 Phila. (Pa.) 509; Molyneaux v. Collier, 13 Ga. 406; Longman v. Calliford, 3 Anstr. 807. 482 Of Pleadings and AMENDMENTS. Proceedings in Equity. An exception to the rule has been admitted in the case of the plaintiff's discovering the necessity of new parties, which he may add at any time, by leave of the court, limiting his amendment to that purpose. 1 Sometimes leave has been given at this stage of the case to amend the prayer of the bill under particular circumstances ; as where the prayer has been omitted by mistake, or the prayer for the proper relief has not been made ; a and, indeed, if no witness has been examined, an amendment has been permitted even after publication has passed. 3 (6) After Reference or Master s Report. An amendment may be made after a reference to a master and before his report ; 4 also, upon proper cause shown, after the master's report. 5 But if the amendment raises new issues the defendant is entitled to a new hearing. 6 Daniell Ch. Pr. (ist Am. ed.) 545; Thorn v. Germand, 4 Johns. Ch. (N. Y.) 363; Shephard v. Merril, 3 Johns. Ch. (N. Y.) 423; Dougherty v. Mur- phy, 10 Phila. (Pa.) 509; Evans v. Rolling, 5 Ala. 550; Jones v. Welling, 16 Fed. Rep. 655; Ross v. Carpenter, 6 McLean (U. S.) 382; Dow v. Jewell, 18 N. H. 340, 45 Am. Dec. 371. See also Steinriede v. Tegge (Ky., 1890), 14 S. W. Rep. 357; Dodd v. Astor, i Barb. Ch. (N. Y.) 395; Seymour z/. Long Dock Co., 17 N. J. Eq. 169; Bar- ton v. Long (N. J., 1888), 14 Atl. Rep. 566; Pinkston v. Taliaferro, 9 Ala. 547; Dana v. Valentine, 5 Met. (Mass.) 8; Hammond v. Place, Harr. . Dexter, 9 Mich. 246; McDougald -v. Dougherty, n Ga. 570; Roddy v. Elam, 12 Rich. Eq. (S. Car.) 343; Henry v. Brown, 8 N. J. Eq. 245; Elmer v. Loper, 25 N. J. Eq. 475; Per- kins v. Hays, Cooke (Tenn.) 189. This practice is not confined to amendment by adding parties; it will be extended to permit the plaintiff to show why he cannot bring the neces- sary parties before the court. Milli- gan v. Mitchell, I Myl. & C. 515; Gib- son v. Ingo, 5 Hare 156. 2. i Daniell Ch. Pr. (6th Am. ed.) 417. Creditors' Bill. It is familiar prac- tice to allow a creditor suing for his own debt only to amend at the hear- ing by converting his bill into one on behalf of himself and all other credi- tors. McDougald v. Dougherty, n Ga. 570; Richmond v. Irons, 121 U. S. 46; Milligan v. Mitchell, i Myl. & C. 433; Hichens v. Congreve, 4 Russ. 562; Atty. Gen. v. Newcombe, i4Ves. Jr. i. Misnomer of Parties may be cured by amendment at the hearing. Hoboken Bldg. Ass'n v. Martin, 13 N. J. Eq. 427. 3. Hardin v. Boyd, 113 U. S. 756; Graffam v. Burgess, 117 U. S. 180; Codington v. Mott, 14 N. J. Eq. 431, 82 Am. Dec. 258; Morrison v. Mayer, 63 Mich. 238; Clifton v. Haig, 4 Desaus. (S. Car.) 330; Harding v. Cox, 3 Atk. 583. Showing of Diligence. In Jones v. Wadsworth, n Phila. (Pa.) 239, an amendment to the bill by adding a prayer for an account was not allowed after the hearing on bill, answer, and proofs; but the rule of that court re- quired diligence, which was not shown in that case. Foreclosure and Accounting. A bill for the foreclosure of void securities may be so amended after hearing as to ask for an accounting of the debt. Burton v. Schildbach, 45 Mich. 504. 4. i Daniell Ch. Pr. (6th ed.) 418 - Bryant v. Peters, 3 Ala. 160; Graffam v. Burgess, 117 U. S. 180; Downer v. O'Donnell, 92 111. 559. Averment of Foreign Statute. Where, in an action by a receiver for a corpora- tion to set aside a mortgage, a foreign statute prohibiting such transfers was imperfectly pleaded in the bill, the complainant was allowed during the trial to amend his bill by properly pleading such statute so as to render it admissible in evidence. Boehme v. Rail (N. J., 1893), 26 Atl. Rep. 832. A Formal Charge of Fraud may be added at the hearing. Wamburzee v. Kennedy, 4 Desaus. (S. Car.) 480. Formal Offer to Pay. A bill to re- deem may be amended at the hearing by adding a formal offer to pay such sum as shall be found due. Green v. Tanner, 8 Met. (Mass.) 411. On Argument before Full Court. A substantial averment in a bill may properly be made more specific, even after argument before the full court, where no objection was made at the hearing. Blanchard v. Cooke, 147 Mass. 223. 484 Of Pleadings and AMENDMENTS. Proceedings in Equity. To Conform to Proof. Where, upon the hearing, it appears clearly from the evidence that the plaintiff has a case which entitles him to relief, but which by reason of some defect or omission in the charges or allegations of the bill is not brought fairly within the issue, he will be permitted to adapt the allegations of the bill to the case as proved; 1 especially where the facts were known to the New Hampshire. Clark v. Keene's First Congregational Soc., 46 N. H. 272; Bellows v. Stone, 14 N. H. 175. United States. Graffam v. Burgess, 117 U. S. 180; Neale v. Neale, 9 Wall. (U. S.) i; Chicago, etc., R. Co. v. Chi- cago Third Nat. Bank, 134 U. S. 276. New Jersey. Hampton v. Nicholson, 23 N. J. Eq. 423; Henry v. Brown, 8 N. J. Eq. 245; Armstrong v. Ross, 20 N. J. Eq. 109; Ledos v. Cupfrian, 28 N. J. Eq. 162; Van Riper v. Claxton, 9 N. J. Eq. 302. West Virginia. Doonan v. Glynn, 26 W. Va. 225; Lamb v. Cecil, 25 W. Va. 288. Illinois. American Bible Soc. v. Price, 115 111. 623; Booth v. Wiley, 102 111. 84; Wise v. Twiss, 54 111. 301; Moshier v. Knox College, 32 111. 155; Hewitt v. Dement, 57 111. 500. See also Hardin v. Boyd, 113 U. S. 756; The Tremolo Patent, 23 Wall. (U. S.) 518; Harrigan v. Bacon, 57 Vt. 644; Ogden v. Thornton, 30 N. J. Eq. 569; Doe -v. Doe, 37 N. H. 268. In Dodson v. McKelvey, 93 Mich. 263, the court allowed an amendment to a bill filed by a ward, against the executor of her deceased guardian to recover funds alleged to be in the ex- ecutor's hands and to belong to the ward, so as to cover the case made by the proofs and to charge the estate for money lost to the ward by the neglect of the guardian to enforce its collection. After Case Reserved. Where a case was tried as if the allegations pro- posed by the amendment were con- tained in the original bill, the amend- ment should be allowed after hearing and case reserved for the full court. Byers v. Franklin Coal Co., 106 Mass. Averment of Levy. A judgment creditor's bill to set aside a deed as in fraud of his rights under the execu- tion did not aver that the sheriff had levied on the land before the bill was filed. The bill was not demurred to, however, and testimony was taken on the whole issue. It was held proper to allow the bill to be amended at the hearing. Smith v. Sherman, 52 Mich. 637- Objection for Want of Equity. Where an objection is taken at the hearing, that the petition is substantially want- ing in equity, the court may grant leave to amend it. Kriechbaum v. Bridges, i Iowa 14. After Cause Submitted. The court may allow an amendment of the bill after replication filed and cause sub- mitted on the evidence. Mason v. Bair, 33 111. 194. Limitation of Power. "The power of the court to order an amendment even on the final hearing is unques- tionable, but it is a power never exer- cised except where the ends of justice render it absolutely necessary, and its exercise will not substantially impair or prejudice the rights of the defend- ant." Ogden v. Thornton, 30 N. J. Eq. 569. After Submission on Bill and Answer. In Flinn v. Flinn, 4 Del. Ch. 44, an amendment of the bill was permitted after the case had been submitted upon bill and answer and held under advisement for several months. See also Jefferson County v. Ferguson, 13 HI. 33- 1. Massachusetts. Bernard v. Top- litz, 160 Mass. 162. Wisconsin. Fery v. Pfeiffer, iSWis. 510; Winslow v. Crowell, 32 Wis. 662; Brayton v. Jones, 5 Wis. 117; District No. 3 v. MacLoon, 4 Wis. 79. Missouri. Connecticut Mut. L. Ins. Co. v. Smith, 117 Mo. 261. Michigan. Gorham v. Wing, 10 Mich. 486; Goodenow v. Curtis, 18 Mich. 298; Church v. Holcomb, 45 Mich. 29. California. Connalley v. Peck, 3 Cal. 75. To Conform to Theory of Trial. The as- signee of a patent in an action against an alleged infringer may have leave to amend before the signing of an inter- locutory decree so as to include as- signed claims for damages and profits which were due to mesne assignors, the bill having been filed, answered, and tried upon the theory that a re- 485 Of Pleadings and AMENDMENTS. Proceedings in Equity. defendant, but were not disclosed in the answer or discovered by covery upon the assigned claims was sought. New York Grape Sugar Co. v. Buffalo Grape Sugar Co., 20 Fed. Rep. 505. To Cure a Variance. Under the Mis- sissippi Code, providing that amend- ments shall be allowed in the plead- ings and proceedings on liberal terms to prevent delay and injustice, it was held error to refuse leave to complain- ant to amend his bill after argument and final hearing to cure a variance between his allegations and proof, the variance being first disclosed by a de- position of a witness which was filed less than a week before the court con- vened. Jeffries v. Jeffries, 66 Miss. 216. To Conform to Contract Proved. A bill was directed to be amended after a final hearing so as to make the con- tract alleged agree with that proved in a bill for specific performance. Davison v. Davison, 13 N. J. Eq. 246. See also Lanning v. Heath, 25 N. J. Eq. 425. Amendment of Verified Bill. The fact that the bill is verified does not neces- sarily deprive the complainant of the benefit of an amendment, Marble v. Bonhotel, 35 111. 240; especially where the law did not require the bill to be verified, Gordon v. Reynolds, 114 111. 118. Continuance. No continuance is nec- essary unless the amendment essen- tially changes the case made by the bill. Martin 7/.Eversal, 36 111. 222. To Meet Allegations in Answer. Amendments to a bill to meet matters set up in the answer may be allowed at or even after a hearing on the plead- ings and proofs. Munch v. Shabel, 37 Mich. 166; Delaware, etc.. Canal, etc., R. Co. -v. Raritan, etc., R. Co., 14 N. J. Eq. 445. In Battle v. Mutual L. Ins. Co., 10 Blatchf. (U. S.) 417, it was held that although some testimony on the part of the plaintiff might be in conflict with the amendment yet, as the amendment harmonized with the alle- gations of the answer, and such testi- mony was not testimony sustaining those allegations, the point in the ob- jection was immaterial. Where the complainant in a fore- closure bill held subsequent mort- gages not referred to in his bill, and the answer of a defendant, brought in as a subsequent incumbrancer, re- ferred to such intervening mortgages, and based asserted equities upon their existence, it was held competent to permit the plaintiff to amend his bill at the hearing so as to make it allege the facts as to those mortgages. Slater v. Breese, 36 Mich. 77, where it was said that the allowance of amendments at the hearing is more a question of terms than of power, if the amendment is germane to the controversy. Where Evidence is Defective. Where the object of the bill does not com- mend it to the favorable considera- tion of the court, and the proof does not convince the court that the plain- tiff is entitled to relief, the amend- ment will not be allowed. Midmer v. Midmer, 26 N. J. Eq. 299. The amendment should not be al- lowed if after the amendment the case will be defective on the proofs. Church v. Holcomb, 45 Mich. 29- Curtis v. Goodenow, 24 Mich. 18. Laches. If the defendant's plea or answer has admonished the plaintiff of the necessity of amending his bill, he should apply promptly, and he will not be allowed to amend at the hear- ing. Hopkins v. Hopkins, 4 Strobh. Eq. (S. Car.) 207, 53 Am. Dec. 663; Wilbur -v. Collier, Clarke Ch. (N. Y.) 315. In Alabama. The Alabama Code, 3356,expressly authorizes amendments at any time before final decree, "to meet any state of the evidence which will authorize relief." Collins v. Stix, 96 Ala. 338; Lee v. Lee, 67 Ala. 406; Olds v. Marshall, 93 Ala. 138; Conner v. Smith, 74 Ala. 115; Prickett v. Sibert, 75 Ala. 315; Hinton v. Citizens' Mut. Ins. Co.. 63 Ala. 488. It is not error to refuse leave to amend where the relief claimed rests on the unsupported testimony of the plaintiff, whose testimony is based upon a paper title which he does not produce, and for the non-production of which he does not account. Alex- ander v. Taylor, 56 Ala. 60. See also Wright v. Dunklin, 83 Ala. 317. It is sufficient if the evidence for the plaintiff makes out a prima-facie case. Gilmer v. Wallace, 75 Ala. 220. It is permissible to change the aver- ments of the bill as to the defend- ant's title to the property which the 486 Of Pleadings and AMENDMENTS. Proceedings in Equity. the plaintiff until after the production of the evidence. 1 Such amendments are commonly made only after the testimony has been taken, and there is a decided objection to the allowance of amendments which vary the allegations according to the real or supposed exigency of the case while the taking of evidence is in progress. 2 Making a New Case. But the plaintiff cannot be permitted to amend at the hearing by making a new case totally inconsistent with that made by the bill as originally framed. 3 (8) After Decree. An amendment may be made even after a final decree where the cause was tried precisely as it must have been tried if the bill had originalry contained the averment in- serted by the amendment. 4 bill seeks to subject. Jones v. Reese, 65 Ala. 134. The amendment will be allowed un- less it makes an entirely new case. Pitts v, Powledge, 56 Ala. 147. The right must be claimed before final decree. Winter v. Merrick, 69 Ala. 86; Smith v. Coleman, 59 Ala. 260, holding that the right to amend is confined to the evidence already taken. On which point see also Beatty v. Brown, 85 Ala. 209. It is not error to pronounce a de- cree in vacation without granting leave to amend unless the decree is based on some amendable defect. Wright v. Dunklin, 83 Ala. 317. 1. Wilson v. Brown, 13 N. J. Eq. 280, where the plaintiff, under the cir- cumstances stated, was permitted to amend without costs. Perea v. Gal- legos, 4 N. Mex. 333; Howell v. Se- bring, 14 N. J. Eq. 84; Morrison v. Mayer, 63 Mich. 238. See also Jef- fries v. Jeffries, 66 Miss. 216; Briggs v. Briggs, 20 Mich. 34. 2. Seymour v. Long Dock Co., 17 N. J. Eq. 169. See also Andrews v. Halliday, 63 111. 263. Whether an amendment of a bill at the hearing can be allowed when the amendment consists of facts that falsi- fy material facts originally stated, quare. Thornton v. Ogden, 32 N. J. Eq. 723. 3. Codington v. Mott, 14 N. J. Eq. 430, 82 Am. Dec. 258; Platt v. Squire, 5 Cush. (Mass.) 551; Commerce Nat. Bank v. Smith (R. I., 1892), 24 Atl. Rep. 469; Livingston v. Hayes, 43 Mich. 129. A bill was dismissed without preju- dice where an amendment proposed after the hearing could not justly be allowed except upon terms equivalent to compelling the plaintiff to file a new bill. Whelan v. Sullivan, loaMass. 204. 4. The Tremolo Patent, 23 Wall. (U. S.) 518. In that case the plaintiff filed a bill to restrain the infringement of a patent, and after final decree he was permitted to amend by settihg up a reissue of the patent which had not been set out in the original bill, con- trary, however, to the supposition of both parties through the whole prog- ress of the trial. The court conceded that the case was" anomalous, but de- clared that the amendment might "well be denominated only an amend- ment of form, because it introduced no other cause of action than that which had been tried." See Claflin v. Bennett, 51 Fed. Rep. 693. Amendment and Decree on Same Day. Under the Alabama Code authorizing an amendment at anytime before final decree, if an amendment was filed and decree entered the same day, it does not appear that the amendment was filed before rendition of the decree, and its disallowance is not error. Beatty v. Brown, 85 Ala. 209. Amendment Kequiring New Proof. After a final decree settling the equities, the court will refuse to allow an amendment which will authorize the introduction of proof or effect a different result. Munter v. Linn, 61 Ala. 492. Clerical Error. A mere clerical error in a bill may be amended after final decree. Donnelly v. Ewart, 3 Rich. Eq. (S. Car.) 18. After Decree Nisi. An amended bill may be filed after decree nisi. Lytel v. Breckinridge, 3 J. J. Marsh. (Ky.) 658, 667. 487 Of Pleadings and AMENDMENTS. Proceedings in Equity. (9) In Appellate Court. In appellate courts of last resort amendments are not usually allowed, 1 but the practice is to remand to the court below for that purpose if necessary. 2 (10) Remand with Leave to Amend. The appellate court, in re- versing a decision overruling a demurrer, will remand for amend- ment unless the defect is incurable; 3 also where the court reverses a decree and it appears that additional allegations and proof, with the proof already taken, would entitle the complainant to relief upon the original cause of action. 4 And upon reversing a decree 1. Michigan Bank v. Niles, Walk. (Mich.) 398; Arendell v. Blackwell, i Dev. Eq. (N. Car.) 358; Williams v. Chambers, I Busb. Eq. (N. Car.) 75. See, however, Grant v. Ludlow, 8 Ohio St. i; Thompson v. McCulloch, 18 Ga. 527. In United States Supreme Court. Amendments of pleadings will not be made in cases appealed to the United States Supreme Court except by con- sent of the parties. Kennedy v. Georgia State Bank, 8 How. (U. S.) 586; Johnson -v. Christian, 125 U. S. 642; Pacific R. Co. v. Ketchum, 95 U. S. i. See also Garland v. Davis, 4 How. (U. S.) 131. In United States Circuit Court. On appeal in equity from the District Court of the United States the Circuit Court can permit an amendment of substance. Warren v. Moody, 9 Fed. Rep. 673. See also Anonymous. Gall. (U. S.) 22. Adding Parties. In Hooper v. Roy- ster, i Munf. (Va.) 119, on an appeal from an interlocutory decree, it was held that, if proper parties to the suit are wanting, the Court of Appeals will not leave it to the chancellor, but will itself direct such parties to be made. Merely formal parties complainant, who might have been added on the hearing in the court below, may be considered as added in the Supreme Court where the decree is already so drawn as to give the added party all the relief he could have gained had he been a party from the beginning. Edinger v. Heiser, 62 Mich. 598. In New Jersey Franklinite Co. v. Ames, 12 N. J. Eq. 507, it was held that new parties cannot be brought in by amendment on appeal. In Pennsylvania it seems that the bill may be amended in the Supreme Court. Darlington's Appeal, 86 Pa. St. 512. 2. See the next paragraph. 3. Wilburn v. McCalley, 63 Ala. 436; Smith v. Conner, 65 Ala. 371. See also Jones v. Latham, 70 Ala. 164. Reversal of Decree upon Sustaining Demurrer. Where, as the result of the application of the statute of limita- tions or the doctrine of laches, the lower court sustained a demurrer and dismissed the bill, and the appellate court reversed the decree, the cause was remanded with directions to allow complainant to amend, he having ap- plied for leave before the appeal was taken. Riddle v. Whitehill, 135 U. S. 627. 4. Fenno v. Coulter, 14 A*rk. 38; Lamb v. Laughlin, 25 W. Va. 300; Lane v. Lane, 87 Ga. 268; Barrett v. Sargeant, 18 Vt. 365; Lewis v. Dar- ling, 16 How. (U. S.) i; Eckford v. Halbert, 30 Miss. 273; Campion v. Kille, 15 N. J. Eq. 476. See also Church -v. Holcomb, 45 Mich. 29. Where the court affirms the decree it will not give the complainant leave to amend, unless the amendment would make a case for relief beyond all reasonable doubt; nor even then if there has been apparently needless delay in bringing the suit. Branch v. Knapp, 61 Ga. 616; Picquet v. Au- gusta, 64 Ga. 516. Remanding without Judgment. The appellate court may decline to render judgment of reversal in a meritorious case, but may remand for amendment, leaving the whole controversy open in the meantime. Trippe v. Winter, 83 Ga. 359. Defects in Substance. In Williams v. Chambers, i Busb. (N. Car.) 75, it was said that, when the bill is defective in substance, the appellate court will not, except under peculiar circumstances, remand the cause for the purpose of amendment in the court below. See also Bier v. Smith, 25 W. Va. 830. Costs. When the record is remanded with leave to amend, the complainant 488 Of Pleadings and AMENDMENTS. Proceedings in Equity. for the complainant on account of want of proper parties, it is the common practice to remand with leave to amend. 1 The case will not be remanded in order that a bill may be amended, when the amendment would make a different case from that stated in the bill. 2 (11) After Remand from Appellate Court. When a case is sent back to the court below reversed, it stands substantially as it did before trial, and the power of that court is as full and unre- stricted as it was before the case was tried, 3 except that it is con- cluded by the legal principles announced by the appellate court. 4 can be placed in no better position as to costs than if the bill had been dis- missed without prejudice. Church v. Holcomb, 45 Mich. 29; Fenno v. Coul- ter, 14 Ark. 38. 1. Parberry v. Goram, 3 Bibb (Ky.) 107; Hoofman v. Marshall, i J. J. Marsh. (Ky.) 64; Sillings v. Bumgard- ner, 9 Gratt. (Va.) 273; Palmer v. Rich, 12 Mich. 414; Lewis v. Darling, 16 How. (U. S.) i; Arendell v. Blackwell, I Dev.Eq. (N. Car.) 358. See supra, 2, a. To Allow Plaintiff to Take Out Letters of Administration. In Bradford v. Felder, 2 McCord Eq. (S. Car.) 168, the cause was remanded upon reversal so as to allow the plaintiff to take out administration and amend so as to sue as administrator. 2. Crabb v. Thomas, 25 Ala. 212; Williams v. Barnes, 28 Ala. 613; Squire v. Hewlett, 141 Mass. 597; Cook v. Bronaugh, 13 Ark. 183; Fenno v. Coulter, 14 Ark. 38. Neglect to Apply in Lower Court. Where a demurrer is sustained on ac- count of the statute of limitations ap- pearing to constitute a bar on the face of the bill, if the complainant does not ask for leave to amend by correct- ing a clerical error in the statement of a fact, the appellate court will not re- mand for the purpose of amendment. Ansley v. King, 35 Ala. 278. See also State Bank v. Ellis, 30 Ala. 478. Excuse for Not Applying. Where a decree dismissing a bill on demurrer is rendered in vacation without giving the plaintiff an opportunity to apply to amend, the appellate court will re- verse with leave to amend. Kings- bury v. Milner, 69 Ala. 502. 3. Fenno v. Coulter, 14 Ark. 38; Chickering v. Failes, 29 111. 294; Han- serd v. Gray, 46 Miss. 75, allowing an .amendment of the answer; Wailes v. Johnson, 25. Miss. 422. Reversal for Mere Irregularity. When a final decree is free from error, but the case is reversed and remanded be- cause without the consent of the par- ties the chancellor affirmed the report of the register in vacation, the court below at a subsequent term has no au- thority to amend the decree on the merits, or to allow an amendment which seeks to accomplish such re- sult. Smith v. Coleman, 59 Ala. 260. Quaere. Whether the court belowcan allow an amendment after a judgment of reversal and remand, "that a de- cree may be rendered in conformity with" its opinion, was made a query in Lanier -v. Hill, 30 Ala. in. After General Demurrer Sustained. In King ?'. King, 45 Ga. 195, an amend- ment of the bill was allowed after a general demurrer for want of equity had been sustained and affirmed by the Supreme Court. But the impera- tive language of the Georgia statute allowed an amendment at any stage of the case, and the court with some re- luctance followed prior decisions. 4. Fenno v. Coulter, 14 Ark. 38; Chickering v. Failes, 29 111. 294; Han- num -v. Cameron, 12 Smed. & M. (Miss.) 509. Questioning Right Already Adjudicated. An amended answer which ques- tions the right of a party as heir, when that right has been adjudicated and recognized in the appellate court, cannot be allowed. Hennings v. Conner, 4 Bibb (Ky.) 298. Repeating Charges Decided Adversely. To repeat by amendment a charge of fraud already adjudicated by a former ruling of the appellate court in the same case is "idle and unprofitable." Lowry v. Davenport, 80 Ga. 742. Denying Recognized Facts. The plaintiff should not be allowed to amend so as to dispute the facts upon 489 Of Pleadings and AMENDMENTS. Proceedings in Equity.. Furthermore, the allowance of amendments is discretionary as in the former proceeding. 1 d. EFFECT OF AMENDMENT (i) Right of Defendant to Plead Anew. An amendment of a bill, however trivial and unimpor- tant, authorizes a defendant, though not required to answer, to put in an answer making an entirely new defense and contradict- ing his former answer. 2 And after an amendment of a bill in a material matter the defendant may plead, 3 answer, 4 or de- which he obtained a decision favora- ble to his interests. Lombard v. Chi- cago Sinai Cong., 75 111. 271. 1. Insufficient Amendment. If the amendment offered still fails to make a case, the lower court may refuse to allow it, and may dismiss the bill. Thurmond v. Clark, 47 Ga. 500. Strong Showing Required. In Adams County "v. Burlington, etc., R. Co., 55 Iowa 94, 44 Iowa 335, it was said that the tendering of a new issue by amendment should be allowed only upon such a showing of accident, mis- take, etc., as would entitle the party to a new trial in an action at law. See also Picquet v. Augusta, 64 Ga. 516. Contradicting Admissions in Answer. Where a party in his answer under oath admits a material allegation of the complaint, and a new trial is granted by the Supreme Court, the defendant should not be allowed on the return of the case to the court below to amend his answer by chang- ing the admission into a denial. Spanagel v, Reay, 47 Cal. 608. 2. i Daniell Ch. Pr. (6th Am. ed.) 409; Burney v. Ball, 24 Ga. 505; Trust, etc., Ins. Co. v. Jenkins, 8 Paige (N. Y.) 589; Richardson v. Richardson, 5 Paige (N. Y.)s8; Dillon v. Davis, 3 Tenn. Ch. 386; Miller v. Whittaker, 33 111. 386; Furman v. North, 4 Baxt. (Tenn.) 296; Davis v. Davis, 62 Miss. 818. As to the right to amend the answer where the bill is amended in com- pliance with an order made at the hearing that the cause stand over for the purpose of adding new parties, see Hutchinson v. Reed, Hoff. Ch. (N. Y.) 316, where the question received much consideration. Evidence Previously Taken. An amended bill as to defendants brought before the court for the first time is in effect an original bill, and no deposi- tions previously taken will be per- mitted to be read against them at the hearing unless by consent. State v. Nashville Sav. Bank, 16 Lea (Tenn.) in. 3. Where the complainant amends his bill after a plea to the same has been disallowed, the defendant may put in a new plea to the amended bill. American Bible Soc. v. Hague, 10 Paige (N. Y.) 549- 4. Amendment of Bill of Discovery. Where a bill for discovery is so amended as to make it a bill for dis- covery and relief, it entitles the de- fendant to amend his answer. Perkins v. Hendryx, 31 Fed. Rep. 522. Objections to First Answer. Objec- tions to an answer to a bill as it stood before amendment cannot be made after amendment unless the defend- ant, after being duly called upon to file his answer to the bill as amended or voluntarily waiving such call, chooses to let it stand as an answer to the amended bill. Angel v. Pennsyl- vania R. Co., 37 N. J. Eq. 92; Trust, etc., Ins. Co. v. Jenkins, 8 Paige (N. Y.) 5 8 9 . Answer to Amendment. Where a plea had been filed to an original bill, and the complainant amended his bill, and defendant answered only the amend- ment, it was held that the plea was superseded by the amended bill, and a motion to take it from the files for irregularity was denied, the proper motion being to take the amendment from the files. The defendant should have demurred or put in a plea or answer to the amended bill. Answer to the amendment alone would have been proper if he had previously answered the original bill. Peck v. Burgess, Walk. (Mich.) 485. Amendment Making Parties. An amended bill merely making proper parties does not give the defendant the right to file an answer to the amended bill, the amendment not af- fecting him. Oldham v. Rowan, 4 Bibb (Ky.) 544- Answer Containing No Defense. The court may in its discretion refuse leave 490 Of Pleadings and AMENDMENTS. Proceedings in Equity. mur 1 to the same as if it were an original bill no matter what may have been the state of the pleadings before the amendment was made, 8 and he is entitled to a reasonable time for that pur- pose. 3 An amendment of the bill does not, however, enable a de- fendant who has answered the original bill to demur to an amended bill upon any cause of demurrer to which the original bill was open, 4 unless the nature of the case made by the bill has been changed by the amendment. 5 (2) Retroactive Effect Original and Amendment One Record. The rule is general in a court of equity that an original and an amended bill are to be regarded as an entire bill, constituting in fact but one record. 6 So far as the equity of the bill is involved, the amended to file an answer which contains no defense to the matter presented by the amendment. Chicago, etc., R. Co. v. Chicago Third Nat. Bank, 134 U. S. 289. Federal Equity Rule. United States Equity Rule 46 provides that, " In any case where an amendment shall be made after answer filed, the defendant shall put in a new answer or supple- mental answer on or before the next succeeding rule-day after that on which the amendment or amended bill is filed, unless the -term is enlarged or otherwise ordered by a judge of the court; and upon his default the like proceedings may be had as in cases of an omission to put in an answer." Matter in New Answer. A new an- swer should not contain matter which was pleaded in the first answer. Gier v. Gregg, 4 McLean (U. S.) 202; Fisher v. Tribby, 5 111. App. 335. 1. New Demurrer. To an amended bill the defendant has a right to inter- pose a new demurrer notwithstanding a previous demurrer to the original bill has been overruled. Bowes v. Hoeg, 15 Fla. 403. Demurrer After Plea. By amending the bill to which a plea has been filed the validity of the plea is admitted; but such amended bill stands in the place of a new one, and the plea is no answer to it, being superseded by the amended bill, to which the defendant has the same time to plead, answer, or demur as to the original bill. If the defendant chooses to demur to such amended bill, the case stands as if no plea had been field. Tompkins v. Hoi- lister, 60 Mich. 470. . 2. Davis -v. Davis, 62 Miss. 818; Dillon v. Davis, 3 Tenn. Ch. 386; Christmas v. Mitchell, 3 Ired. Eq. (N. Car.) 535; Bancrofts. Wardour, 2 Bro. C. C. 66; Bosanquet v. Marsham, 4. Sim. 573; Cresy v. Bevan, 13 Sim. 354. 3. Davis v. Davis, 62 Miss. 818, holding that one hour and three- quarters is not a reasonable time. Court May Prescribe Time. Where no decree is prayed against a new party brought in by amendment, it is not requisite to extend to such party the time allowed to an original defendant for the purpose of filing an answer; and it is competent for the court to prescribe the time in which an original defendant shall answer an amend- ment. McDougald v. Dougherty, 14 Ga. 674. See Hoxey v. Carey, 12 Ga. 534- After Time Has Expired. When the time has expired for answering an amendment to a bill the case may be noticed for hearing. Munch v. Shabel, 37 Mich. 166. Rule to Answer. After the sub- mission of a case for hearing upon the pleadings and proof, if the court allows amendments asking relief not before sought, it is error to proceed to a hearing against defendant's protest and enter a decree embracing the new matters without first laying a rule upon the defendant to answer. Gage v. Brown; 125 111. 522. Compare Gregg v. Brower, 67 111. 525. 4. i Daniell Ch. Pr. (6th Am. ed.) 409; Hardie v. Bulger, 66 Miss. 577. 5. i Daniell Ch. Pr. (6th Am. ed.) 409; Cresy v. Bevan, 13 Sim. 354. 6. Adams v. Phillips, 75 Ala. 461; Taunton v. Mclnnish, 46 Ala. 619; Mor- row v. Fossick, 3 Lea (Tenn.) 131; Wilson v. Beadle, 2 Head (Tenn.) 510, 512; Browne v. Browne, 17 Fla. 607; 491 Of Pleadings and AMENDMENTS. Proceedings in Equity. bill has relation to the commencement of the suit by the filing of the original bill. 1 statute of Limitations Suspended. If the amendment does not intro- duce a new cause of action or entirely new parties, the statute of limitations will constitute no defense unless it would have been a defense to the original bill. 2 Effect on injunction. Where a bill as amended states good ground for an injunction, the insufficiency of the original bill to sustain an injunction is immaterial. 3 Discharging Contempt Proceedings. As a general rule an amendment of a bill has the effect to destroy prior proceedings for a con- tempt. 4 Carey v. Hillhouse, 5 Ga. 251; Mezeix v. McGraw, 44 Miss. 100; Barber v. Reynolds, 33 Cal. 497; Keyser v. Reu- ner, 87 Va. 249; Munch v. Shabel, 37 Mich. 166; Hammond v. Place, Harr. (Mich.) 438; Walsh v. Smyth, 3 Bland (Md.) 9. Amendment of Footnote. Where an original bill by its footnote waives oath as to all defendants, and another de- fendant is brought in by amendment, and, instead of a new footnote, the original footnote is amended by nam- ing him as defendant, his oath is waived, for the reason that the foot- note is a part of the bill (see United States Equity Rules 41, 42), and any amendment thereto relates back. Fish- er v. Moog, 39 Fed. Rep. 665. Amendment Covering Eeissue of Ex- pired Patent. An amendment to cover the reissue of a patent was allowed although the patent alleged in the original bill to have been infringed had expired before the amendment. Reay v. Raynor, 19 Fed. Rep. 308. Dismissal of Amended Bill. A decree dismissing an amended bill is a final disposition of the whole case. Bra- dish v. Grant, 119 111. 606. Dismissal of Original Bill. A mandate from the appellate court directing the dismissal of a bill includes the dis- missal of an amended bill on which the case was tried. Beach Mod. Eq. Pr. 999, citing Campbell v. James, 31 Fed. Rep. 525. 1. Adams v. Phillips, 75 Ala. 461; Jones v. McPhillips, 82 Ala. 102; Cain v. Gimon, 36 Ala. 168; Lipscomb v. McClellan, 72 Ala. 151: Hurd v. Ever- ett, i Paige (N. Y.) 129; Gaylord v. Ft. Wayne, etc., R. Co., 6 Biss. (U. S.) 286. Offer to Pay on Bill to Redeem. Thus in a suit to have an absolute convey- ance declared a mortgage, and for an account and redemption, an amend- ment offering to pay the amount that shall be found due, and to bring the same into court, and to pay all legal costs, takes effect as of the filing of the original bill. Crews v. Threadgill, 35 Ala. 334. Equities of Third Parties. Where a demurrer to a bill to establish an equitable interest in land is sustained with leave to amend, and the bill is subsequently amended, the equities in the original bill are not subordinated to an attachment lien which was placed on the land after the bill was filed but before service of process upon the attaching creditor, although the latter obtained judgment under which the land was sold before the demurrer was sustained but after process was served upon him. Cotton v. Dacey, 61 Fed. Rep. 481. See also Lookout Bank v. Susong, 90 Tenn. 590; Bradley v. Dibbrell, 3 Heisk. (Tenn.) 522. Where the Matter Occurred Pending Suit. In Alabama, where it is permis- sible to set up by amendment matter which has occurred since the suit was brought, an amendment embracing such matter does not relate back. Jones v. McPhillips, 82 Ala. 102. 2. Allen v. Woodson, 50 Ga. 53; Wilhelm's Appeal, 79 Pa. St. 120. Contra, where a new cause is intro- duced, Henderson v. Kissam, 8 Tex. 46; or new and distinct parties, Miller v. M'Intyre, 6 Pet. (U. S.) 61; King v. Avery, 37 Ala. 169; Tompkins v. Holt (Ala., 1891), 8 So. Rep. 794. 3. Miller z>. Cook, 135 111. 190. See also Barber v. Reynolds, 33 Cal. 497; Des Moines, etc., R. Co. v. Carpenter, 27 Iowa 487, 492; Sweatt v. Faville, 23 Iowa 321. 4. Symonds v. Duchess of Cum- berland, 2 Cox 411; Gray v. Camp- 492 Of Pleadings and AMENDMENTS. Proceedings in Equity.. Designed to Promote Justice. But the fiction of relation is never per- mitted to operate when it would destroy intervening rights, 1 or otherwise work injustice.* (3) Without Prejudice to Injunction. After injunction granted, the bill may be amended by leave without prejudice to the injunc- tion ; 3 and where a bill as amended states good ground for an injunction, the sufficiency of the bill as originally filed to sustain an injunction will not be considered on appeal, since the amend- ment relates back to the filing of the bill. 4 (4) Waiver of Default. When the complainant amends his bill after the defendant's default is taken, this virtually sets the default aside, and the defendant has the right to answer the bill without an order setting aside his default. 5 bell, i R. & M. 323. See Davenport v. Bartlett, 9 Ala. 180. 1. Brinegar v. Allen, 2 Duv.(Ky.) 99. Purchase Prior to Amendment. If the equity in the amendment is contradic- tory of or different from that in the original bill, and the relief is of a dif- ferent character, a purchaser who bought previous to the amendment will not be affected by it. Wortham v. Boyd, 66 Tex. 401. 2. McDougald v. Dougherty, n Ga. 570; Adams v. Phillips, 75 Ala. 461. Adding New Parties. When new parties defendant are added, they may set up the statute of limitations if it has attached at the date of the amend- ment. Miller v. M'Intyre, 6 Pet. (U.S.) 61. So, if an entirely new plaintiff is added by amendment, the defendants have the same right to set up the stat- ute of limitations against him, King v. Avery, 37 Ala. 169; or staleness of demand, Tompkins v. Holt (Ala., 1891), 8 So. Rep. 794. Amendment Dispensing with Sworn Answer. Where the original bill re- quired an answer under oath, which was filed, and afterward the complain- ant filed an amended bill setting up new matter and dispensing with a sworn answer, it was held that such waiver would not affect the answer under oath already on file, and that it extended only to the new matter set up in the amended bill. Jefferson v. Kennard, 77 111. 246. 3. Johnson v. Vail, 14 N. J. Eq. 423; Barber v. Reynolds, 33 Cal. 497; Reed v. Consequa, 4 Wash. (U. S.) 174; Sel- den v. Vermilya, 4 Sandf. Ch. (N. Y.) 573; Mount Olivet Cemetery Co. v. Budeke, 2 Tenn. Ch. 480; Furness v. Brown, 8 How. Pr. (N. Y. Supreme Ct.> 159; Walker v.. Walker, 3 Ga. 302; Warburton v. London, etc., R. Co., 2 Beav. 254; Pratt v. Archer, i Sim. & Stu. 433; Pickering v. Hanson, 2 Sim. 488; Davis v. Davis, 2 Sim. 515. See also Latham v. Wiswall, 2 Ired. Eq. (N. Car.) 294; Atty.-Gen. v. Marsh, 16 Sim. 572; Delaware, etc., Canal, etc., R. Co. v. Raritan, etc., R. Co., 14 N. J. Eq. 445. " Where an injunction bill is amend- ed on leave, the injunction continues in force although the order granting- leave is silent on the subject." Beach Mod. Eq. Pr. 154. Where the bill as amended is upon its face sufficient, and there is no show- ing outside the bill why the injunction, allowed in the suit should be dissolved, a motion to dissolve will be over- ruled. Lyster v. Stickney, 12 Fed. Rep. 609. Inconsistent Amendment. Where the amendment is directly in conflict with the relief sought in the original bill, an attachment and injunction sued out under the original bill will not inure to the benefit of the antagonistic right set up in the amendment. Bosley v. Phillips, 3 Tenn. Ch. 649. Where Original Bill is Defective. Where an injunction is granted on an original bill which is defective, but the bill is afterward cured of its defects by amendment, it is proper for the court to refuse to dismiss the orig- inal bill. Ward v. Whitfield, 64 Miss. 754- 4. Miller v. Cook, 135 111. 190. See Walsh v. Smyth, 3 Bland (Md.) 9. 5. Lyndon v. Lyndon, 69 111. 43T- Gibson v. Rees, 50 111. 383; Scudder v~ Voorhis, i Barb. (N. Y.) 55. 493 Of Pleadings and AMENDMENTS. Proceedings in Equity (5) Obviating Mnltifariousness. Where an amendment aban- dons any claim which made the original bill multifarious, it obviates any objection on that ground. 1 (6) New Process upon Amendment. Upon an amendment of the bill, no new subpoena is necessary, except to bring in new de- fendants who are made parties by the amendment. 2 3. Of Demurrers. The court, upon overruling a demurrer because it was too broad, has sometimes given the defendant leave to put in a less extended demurrer, or to amend and narrow the de- murrer already filed. 3 In the latter case, however, the applica- tion to amend ought to be made before the judgment upon the demurrer as it stands has been pronounced, 4 although even where that has been omitted, the court has, after the demurrer has been overruled, upon a proper case being shown, given the defendant leave to put in a less extended demurrer. 5 And leave to correct a clerical error in a demurrer has been granted, the time for de- murring not having expired. 6 Jones Eq. (N. Car.) 129; Myers v. Morris (N. J., 1888), II Atl. Rep. 859; Reno v. Harper, 23 Miss. 154. 3. Kirkpatrick v. Corning, 39 N. J. Eq. 22; Vanderveer v. Stryker, 8 N. J. Eq. 186; Marsh v. Marsh, 16 N. J. Eq. 391, 84 Am. Dec. 164, where a de- murrer for want of equity was over- ruled with leave to amend by specify- ing the grounds of demurrer. Atwill v. Ferrett, 2 Blatchf. (U. S.)3g; Baker v. Mellish, n Ves. Jr. 68; Glegg v, Legh, 4 Madd. 104; Thorpe v. Macau- lay, 5 Madd. 135. In Kirkpatrick v. Corning, 39 N. J. Eq. 22, a decree of the chancellor sus- taining a general demurrer was re- versed by the Court of Appeals, but a part of the chanceller's decision, as ex- pressed in his opinion, was approved. It was held that, after the decision of the Court of Appeals had been remit- ted to the Court of Chancery, the de- fendant could apply under the rule of court to have stricken out of the bill so much thereof as was held to be objectionable by that part of the deci- sion sustained by the Court of Appeals, such proceeding being tantamount to an amendment of the original de- Merely Formal Amendment. An amendment necessary to show the jurisdiction of the court, but which neither alters the title of the com- plainant to the relief sought, nor the relief itself in substance or form, may be regarded as merely formal and not superseding a prior default. Clason v. Corley, 5 Sandf. (N. Y.) 454. 1. Alabama Warehouse Co. v. Jones, 62 Ala. 550; Harland v. Person, 93 Ala. 273; Whitney v. Union R. Co., n Gray (Mass.) 359, 71 Am. Dec. 715. 2. Lawrence v. Bolton, 3 Paige (N. Y. ) 294; Beekman v. Waters, 3 Johns. Ch. (N. Y.)4io; Equitable L. Assur. Soc. v. Laird, 24 N. J. Eq. 319; Long- worth v. Taylor, I McLean (U. S.)5I4; Jefferson v. Gaines, 7 Baxt. (Tenn.) 368; Abright v. Flowers, 52 Miss. 246; Angerstein v. Clark, i Ves. Jr. 250, Beach Mod. Eq. Pr. 154. See Bal- timore, etc., R. Co. v. Christie, 5 W. Va. 325. Notice of Amendment. A defendant in court or acknowledging due service of process may fairly be held to have constructive notice of all amendments made before he is defaulted. Fogg v. Merrill, 74 Me. 523. But after his default he is entitled to notice of an amendment which in- creases the claim of the plaintiff. Fogg v. Merrill, 74 Me. 523. In some states service of amend- ments is required. See Masterson v. Masterson, 32 Ala. 437; Alston v. Al- ston, 34 Ala. 13; Holly v. Bass, 63 Ala. 387; Hinton v. Citizens' Mut. Ins. Co., 63 Ala. 488; McRae v. Guion, 5 4. iDaniellCh. Pr. (6th Am. ed.) 584. 5. i Daniell Ch. Pr. (6th Am. ed.) 584; Vanderveer v. Stryker, 8 N. J. Eq. 175; Marsh v. Marsh, 16 N. J. Eq.3gi, 84 Am. Dec. 164; Baker v. Mellish, n Ves. Jr. 76. 6. Richardson v. Hastings, 7 Beav. 58. United States Revised Sts. 954, 494 Of Pleadings and AMENDMENTS. Proceedings in Equity. 4. Of Pleas. The court will grant leave to amend a plea where an apparently good ground of defense is disclosed by the plea, but owing to some accident or mistake it has been informally pleaded. 1 Where a substantial ground of defense has been omitted, such permission will not be given. 2 Where an amendment is allowed, a short time is generally limited within which it must be made. 3 Although, where the error is very palpable, the court will give the defendant leave to amend at the argument of the plea, the most usual course is for the defendant to move subsequently for leave to amend his plea. 4 5. Of Replications. Any error in the replication except the omission of the names of any defendants may be corrected by amendment. 5 6. Of Answers a. IN GENERAL. In matters of form, 6 or mis- would authorize the amendment of a demurrer in matter of form, i Foster Fed. Pr. (2ded.) 166. 1. i Daniell Ch. Pr. (6th Am. ed.) 703, 704; Beach Mod. Eq. Pr. 320; Green v. Harris, II R. I. 5, an instruc- tive case on the amendment of pleas, holding that a plea may be amended though supported or accompanied by an answer. Meeker v. Marsh, I N. J. Eq. 198. In Federal Courts. United States Rev. Sts. 954, would allow an amendment of a plea in matter of form. Plea of Stated Account. Where the de- fendant pleaded a stated account with- out alleging that it was just and true, and it was overruled for the defect, leave was given to amend. Driggs v. Garretson, 25 N. J. Eq. 178. Plea of Kelease. Where a bill charges that a release was procured by fraud, and the defendant pleads the release without denying the circumstances charged, he may be allowed to amend his plea. Allen v. Randolph, 4 Johns. Ch. 693; Bayley v. Adams,6Ves. 586. Additional Facts. A plea may be amended by the addition of a fact un- known to the defendant when the plea was filed and consistent with the de- fense then made, but it will not be allowed for the purpose of setting up a fact or state of facts inconsistent with the original defense. Freeman v. Michigan State Bank, Harr. (Mich.) 311, where the amendment was allowed. Amendment of Verification. The af- fidavit in support of a plea may be amended by leave of the court. Beach Mod. Eq. Pr. 323 ; Cheatham v. Pearce, 89 Tenn. 668; Wrompelmeir v. Moses, 3 Baxt. (Tenn.) 471; Trabue v. Higden, 4 Coldw. (Tenn.) 624; Sei- freid v. People's Bank, 2 Tenn. Ch. 19. 2. i Daniell Ch. Pr. (6th Am. ed.) 704. Raising Several Issues. An amend- ment of a plea so as to raise a multi- tude of issues will not generally be allowed, especially after long delay. Giant Powder Co. v. Safety Nitro Powder Co., 19 Fed. Rep. 509. 3. i Daniell Ch. Pr. (6th Am. ed.) 703; Beach Mod. Eq. Pr. 320; Hoff- man Ch. Pr. (2d ed.) 226. 4. i Daniell Ch. Pr. (6th Am. ed. ) 704. 5. i Daniell Ch. Pr. (6th Am. ed.) 831. In Goodyear v. McBurney, 3 Blatchf. (U. S.) 32, a plaintiff was permitted to file an amended replication to a plea, the amendment setting up matters of which he was ignorant when the plea and replication were filed, on payment of costs of opposing the motion to amend and of putting in a rejoinder to the replication. Transposition of Parties. After a cause was submitted to the jury, it being discovered that the replication which had been filed transposed the parties, the court permitted a formal and proper replication to be filed. Buckley v. Boutellier, 61 111. 693. 6. Amending Title. Where there has been a mistake in the title of an an- swer, an amendment of it has been permitted. White v. Godbold, I Madd. 151; Peacock v. Duke of Bedford, I Ves. & B. 186; Thatcher v. Lambert, 5 Hare 228; Atty. Gen. v. Worcester, 2 Ph. 3. 495 Of Pleadings and AMENDMENTS. Proceedings in Equity.. takes in dates, 1 or verbal inaccuracies, 3 courts of equity are very- indulgent in allowing amendments of answers. 3 But they are slow to allow amendments in material facts, or amendments which change essentially the grounds taken in the original answer. 4 Where the object is to let in facts and defenses de- Formal Denial. The defendant will be allowed to amend his answer by a formal denial of the averments of the bill. McBride v. Patton, 9 Phila. (Pa.) 271. Making Answer Responsive. Where an answer is not sufficiently explicit and responsive, an amended answer may be required. Feller v. Winchester, 3 Greene (Iowa) 244. Amending Jurat. An omission in the jurat to an answer may be amended. Arnold v. Kreissler, 22 Tex. 580. Amending Verification. Under the Iowa Code, the defendant may amend his answer and verification. Brink v, Morton, 2 Iowa 411. Inserting Names of Parties. The omission of the names of the parties from an unsworn answer by mistake of the solicitor was amended after replication and testimony in behalf of the parties for whom it was put in as a mere pleading. McMichael v. Bren- nan, 31 N. J. Eq. 496. Federal Equity Rule. United States Equity Rule 60 provides for the amend- ment of answers as of course in any matter of form, or by filling up a blank or correcting a date, or a reference to a document or other small matter at any time before a replication is put in or the cause set down for hearing upon bill and answer. 1. Smith v. Babcock, 3 Sumn. (U. S.) 583. In Fulton v. Gilmour, 8 Beav. 154, i Phil. 522, after the cause was at issue and on the paper, leave was given to file a supplemental answer to correct an important date. 2. Smith v. Babcock, 3 Sumn. (U. S.) 583. 3. Smith v. Babcock, 3 Sumn. (U. S.) 583; Huffman v. Hummer, 17 N. J. Eq. 269. Amending Supplemental Answer. A supplemental answer asking for affirm- ative relief may be amended, like any otner pleading, even after plain- tiffs have taken a nonsuit, since they may remain in court as defendants to the portion of the answer demand- ing affirmative relief. Merchant v. Bowyer, 3 Tex. Civ. App. 367. Incorporating Demurrer in Answer. Under the Alabama Code, 3449, pro- viding that amendments to answers must be allowed at any time before de- cree so as to set up any defense, the court is bound to permit, on motion, a demurrer filed before answer to be in- corporated in the answer; but a re- fusal to do so will be error without prejudice where the demurrer was in fact ruled upon. Harland v. Person, 93 Ala. 273. Amending Answer in Interpleader. In a bill of interpleader, after the dis- charge of the complainant, and the testimony has been published by con- sent without prejudice, the court may in its discretion permit an amendment of one of the answers. Lanier v. Driver, 24 Ala. 149. By Striking Out. In Oliver v. Per- sons, 29 Ga. 568, a defendant was al- lowed to amend his answer by striking out part of it, the statute providing for amendments in form or substance as matter of right. After Exceptions Sustained. Where exceptions to the answer are sustained, the defendant should have leave to amend. Hollis v. Border, 10 Tex. 360. Before Replication. In Kentucky, under the acts of 1802 and 1811, the defendant could amend his answer as of right before replication. Hughes v. Phelps, 3 Bibb (Ky.) 198. So in the federal courts under United States Equity Rule 60. Converting Answer into Cross-bill. In Georgia, where amendments in equity are a matter of right by statute, an amendment taking the form of a cross- bill may be made to the answer. Canant v. Mappin, 20 Ga. 730. See also Bowman v. Long, 27 Ga. 178. 4. Smiths. Babcock, 3 Sumn. (U. S.) 583; Graves v. Niles, Harr. (Mich,)332; Huffman v. Hummer, 17 N. J. Eq. 269; Bell v. Hall, 5 N. J. Eq. 49; Vandevere v. Reading, 9 N. J. Eq. 446; Mechan- ics' Bank v. Burnett Mfg. Co., 32 N. J. Eq. 236; Campion v. Kille, 14 N. J. Eq. 229; Reynolds v. West, 32 Ark. 244; Williams v. Savage Mfg. Co., 3 Md. Ch. 418; Tillinghast v. Champlin , 4 R.I. 496 Of Pleadings and A MEND MEX TS. Proceedings in Equity. pending wholly upon parol evidence, the reluctance of the court to allow amendments is greatly increased. 1 But where the facts sought to be introduced are written papers or documents which have been omitted by accident or mistake, the court is much in- clined to permit the amendment. 3 The whole matter rests in the sound discretion of the court. 3 But the rule frequently declared is, that, before amendments to the answer are allowed, the court should be satisfied that the reasons assigned for the application are cogent ; that the mistakes to be corrected or the facts to be added are made highly probable, if not certain ; 4 that they are material to the merits of the case ; 5 128; Goodwin v. McGehee, 15 Ala. 232; Maher v. Bull, 39 111. 531 ; Maher v. Bull, 39 111. 538; Elder v. Harris, 76 Va. 187, holding that the pro- vision of the Code allowing a de- fendant to file his answer at any time before final decree has no reference to an amended or supplemental answer; Cook v. Bee, 2 Tenn. Ch. 343; Martin v. Atkinson, 5 Ga. 390; Western Re- serve Bank v. Stryker, i Clarke Ch. (N. Y.) 380. Answer in Nature of Cross-bill. Where an amended answer is filled in the na- ture of a cross-bill for affirmative re- lief, such amended answer should be confined to the matters contained in the original bill and answer, and should not interpose new and different matters not embraced therein. Radcliff z\ Cor- rothers, 33 W. Va. 682. 1. Smith v. Babcock, 3 Sumn. (U. S.) 583; India Rubber Comb Co. v. Phelps, 8 Blatchf. (U. S.) 85. 2. Smith v. Babcock, 3 Sumn. (U. S.) 583. 3. Bowen v. Cross, 4 Johns. Ch. (N. Y.) 375; Huffman v. Hummer, 17 N. J. Eq. 269; Arnaud v. Grigg, 29 N. J. Eq. i; Warren v. Twilley, 10 Md. 39; Rick- etts' Appeal (Pa., 1888), 12 Atl. Rep. 60; Martin v. Atkinson, 5 Ga. 390. Defendant in Contempt. A defendant who offers to file an insufficient answer to purge a contempt cannot claim as a matter of right to amend the answer. The motion should be for leave to file a sufficient answer. Cowart v. Harrod, 12 Ala. 265. Sufficient Showing. When it is made to appear to the court upon oath that the defendant, when he first put in his answer, intended to swear as he de- sires by the amendment to be permit- ted to swear, the amendment will be allowed. Martin v. Atkinson, 5 Ga. 39- Not so Liberal as at Law. It has been said that courts of equity exhibit less facility in allowing amendments to an- swers than is exhibited by courts of law in allowing amendments to plead- ings. Galloway v. Dobson, i Brock. (U. S.) 119. Setting up Statutes of Frauds and of Limitations. After issue joined and the cause set for hearing, the defend- ant may be permitted for good cause shown to amend his answer by plead- ing the statutes of frauds and limita- tions. Jackson v. Cutright, 5 Munf. (Va.) 308. In White v. Turner, 2 Gratt. (Va.) 502, the defendant was allowed to amend by setting up the statute of limitations. A motion to amend the answer by setting up the statute of frauds after the plaintiff had closed his testimony was allowed in Hann v. Barnegat, etc., Imp. Co. (N. J., 1887), 8 Atl. Rep. 531. 4. Smith v. Babcock, 3 Sumn. (U. S.) 583; Higgins v. Curtiss, 82 111. 28. See also Smallwood v. Lewin, 13 N. J. Eq. 123; Hart v. Sanderson, 18 Fla. 103. Facts Admitted to be True. An amendment will not be allowed which fails to state correctly facts which are admitted to be true. Dearth v. Hide, etc., Nat. Bank, 100 Mass. 540. Where Evidence Insufficient. A mo- tion to amend an answer, and for a commission to take testimony in a for- eign country to prove who was the original inventor of a patent, will not be allowed when the affidavits filed show that there is no evidence to sus- tain the amendment. Hicks v. Otto, 17 Fed. Rep. 539. 5. Smith v. Babcock, 3 Sumn. (U. S.) 583- Irrelevant Matter. An amended an- swer presenting as new matter only matter immaterial and irrelevant i Encyc. PI. & Pr. 32. 497 Gf Pleadings and A MENDMENTS. Proceedings in Equity. that the mistakes have been ascertained and the new facts have come to the knowledge of the party since the original answer was put in and sworn to, 1 and that the party has not been guilty of gross negligence. 2 ought to be rejected. McKay v. Mc- Kay, 33 W. Va. 724. Where a proposed amendment pre- sents new matter which is not material to the defense, the court may refuse to permit it to be filed. Tracewell v. Boggs, 14 W. Va. 254. 1. Smith v. Babcock, 3 Sumn. (U. S.) 583 ; Martin v. Mitchell, 26 N. J. Eq. 497; Foutty v. Poar, 35 W. Va. 70; Matthews v, Dunbar, 3 W. Va. 138; Graham v. Skinner, 4 Jones (N. Car.) 94. See also Livesay v. Wilson, i Ves. & B. 149, note. Previous Knowledge. Leave to amend an answer in a foreclosure suit by the insertion of an additonal fact was re- fused where such fact was known to the defendant at the time the answer was filed. Cross v. Morgan, 6 Fed. Rep. 241. In Wilson v. Wintermute, 27 N. J. Eq. 63, an application to amend a sworn answer, on the ground of mistake dis- covered at the time the answer was read to the party making it, was denied where the application was made more than two years after the discovery and the filing of the answer, and without ex- cuse for the delay and upon feeble proof of the alleged mistake. Mistake of Fact. It was said, in Bowen v. Cross, 4 Johns. Ch. (N. Y.) 378, that amendments of answers to correct mistakes are allowed with great caution, and only where there is a mistake, properly speaking, as to a matter of fact, and not where the de- fendant has mistaken the nature of his defense. See also Reynolds v. West, 32 Ark. 244; Cock v. Evans, 9 Yerg. (Tenn.) 287; United R., etc. Co. v. Long Dock Co., 41 N. J. Eq. 407; Branch v. Dawson, 9 Ga. 592. Mistake of Solicitor. In Arnaud v. Grigg, 29 N. J. Eq. I, after the evi- dence was closed and the cause set down for final hearing, the defendant was permitted to amend by setting up an instrument which had been omit- ted from the answer by mere over- sight of his solicitor, the proposed amendment making no new defense, but making more effectual the defense already presented by the answer. In Nail v. Punter, 4 Sim. 474, leave was given to a defendant to amend by stating facts which she had desired to state in her answer, but which she had been prevailed upon to omit by the mistaken advice of her solicitor. So, too, under like circumstances, in Burgin v. Giberson, 23 N. J. Eq. 403. Limiting Admissions. In Dagly v. Crump, Dick. 35, a defendant was al- lowed to amend his answer by limiting the admission of assets contained therein. The admission was most important, and was made by mistake and the carelessness of the solicitor who drew the answer. See also Hughes v. Bloomer, 9 Paige (N. Y.) 270; Curling v. Townshend, 19 Ves. Jr. 628; Swallow v. Day, Colly. 133. Ambiguous Answer. The discovery of a mistake in the answer, or that it is liable to be misunderstood, is a good ground for amendment. McWilliams v. Herndon, 3 Dana (Ky.) 568; Bowen v. Cross, 4 Johns. Ch. (N. Y.) 375. Especially so where the correction will not be prejudicial to the plaintiff. Mouncer v. Byars, n Ga. 180. Contradicting Admissions. The court may allow an amended answer con- tradicting admissions made in the original answer by mistake. Downing v. Bacon, 7 Bush (Ky.) 680; Taylor v. Dodd, 5 Ind. 246. 2. Smith v. Babcock, 3 Sumn. (U. S.) 583. Gouverneur v. Elmendorf, 4 Johns. Ch. (N. Y.) 357. Illness and Hurry of Solicitor. In Tillinghast v. Champlin, 4 R. I. 128, a substantial amendment of the an- swer was allowed after the cause had been set down for hearing on bill and answer, there being no gross neg- ligence, and the illness and hurry of the solicitor being deemed a satis- factory excuse. Ignorance and Laches. In a suit for the infringement of a patent, the de- fendant, more than one year after the plaintiff's proofs were closed, moved to amend the sworn answer by aver- ring, on information and belief, that the invention had been in public use for more than two years before the patent was applied for, and that it 498 Of Pleadings and AMENDMENTS. Proceedings in Equity. b. FACTS OCCURRING SUBSEQUENT TO ANSWER. Where a fact which may be of advantage to a defendant has happened subse- quent to his answer, it cannot with propriety be put in issue by amending his answer. 1 But if it appears to the court on the hear- ing that it may thus be of advantage, the proper way seems to be to order the cause to stand over until a new bill can be filed in which the fact can be brought to a hearing with the original suit. 8 c. MAKING A NEW DEFENSE. Except under very special circumstances, leave will not be granted to the defendant to file an amended answer in which it is proposed to take entirely new ground, and change entirely the character of the defense. 3 d. UNCONSCIONABLE DEFENSES. Formerly the courts were inclined to discriminate against defenses denominated unconscion- able, 4 such as usury, the statute of limitations, and the statute of was described in a prior patent. The only excuse offered for not inserting the first defense in the original an- swer was that the counsel who pre- pared that answer was under the im- pression that the suit was subject to the law as it stood prior to the patent act of 1870; and as to the second de- fense, the excuse was that such coun- sel had no knowledge or information of any description of any patent prior to plaintiff's containing a certain de- vice. The motion was denied. Web- ster Loom Co. v. Higgins, 13 Blatchf. (U.S.) 349- See, for other cases of laches in ap- plying for leave to amend, Goodwin v. McGehee, 15 Ala. 232; United R., etc., Co. v. Long Dock Co., 41 N. J. Eq. 407; Furman v. Edwards, 3 Tenn. Ch. 365; Wilson v. Wilson, 2 Lea (Tenn.) 17; India Rubber Comb. Co. v. Phelps, 8 Blatchf. (U. S.) 85. Federal Equity Eule. United States Equity Rule 80, providing that after replication or cause set down for hear- ing on bill and answer material amend- ments shall be made only upon special leave and cause shown by affidavit, is not complied with where it appears that the matter of the proposed amendment could with reasonable diligence have been earlier introduced into the answer. India Rubber Comb. Co. v. Phelps, 8 Blatchf. (U. S.)85. Laches without Prejudice. Where de- fendant's delay in interposing a par- ticular defence has not caused any material change in the plaintiff's situation, the amendment may be allowed. Arnold v. Chesebrough, 33 Fed. Rep. 571. 1. Story Eq. PI. (roth ed.) 903. 2. Story Eq. PI. (roth ed.) 903. Subsequently Acquired Title. But in Barnegat City Beach Assoc. v. Buzby (N. J., 1890), 20 Atl. Rep. 214, on a bill filed to determine title to land, the defendant was allowed to amend his answer so as to set up a title to the land in dispute which he had acquired since his answer was filed, the court declaring that conclusion to be " more in harmony with the liberality of judges at the present time in allowing amendments." 3. Campion v. Kille, 14 N. J. Eq. 229; Graves -v. Niles, Harr. (Mich.) 332. See also Galloway v. Dobson, I Brock. (U. S.) 119; Freeman v. Michi- gan State Bank, Harr. (Mich.) 311; Reynolds v. West, 32 Ark. 244; Field- ing v. Fitzgerald, 130 111. 437. But in Graves v. Niles, Harr. (Mich.) 332. where it appeared that there was doubt in regard to the proper applica- tion of certain moneys admitted to have been received by the defendant, and the answer was obscure, and there was a possibility that great injustice might be done to the defendant, the court reluctantly granted an order per- mitting a separate supplemental an- swer to be filed as to the particular above mentioned, and explaining the ambiguity. In Grace v. Newbre, 31 Wis. 19, where the original answer denied that there had been an account stated be- tween the parties, an amendment which alleged, in substance, that if the trans- action between them amounted to the stating of an account, then such ac- count, by reason of certain mistakes, was stated at too large an amount against defendant, was held not incon- sistent with the original denial. 4. Setting up Ultra Vires. A defense to 499 Of Pleadings and AMENDMENTS. Proceedings in Equity. frauds, and not to allow such defenses to be set up by amended or supplemental answer ;* but this practice has been much shaken by recent authorities, which hold that it is the duty of the court to put statutory defenses upon the same footing with other legal defenses in this behalf. 2 e. AT AND AFTER HEARING. Upon the hearing of a cause, the same indulgence will be granted to a defendant as to a plain- tiff, 3 and if it appears that the defendant has not put in issue facts which he ought to have put in issue, and which must necessarily be in issue to enable the court to determine the merits of the case, he will be allowed to amend his answer for the purpose of stating those facts. 4 a bill for foreclosure, that the plaintiff corporation, in making the loan to se- cure which the mortgage was given, was acting ultra vires, is unconscion- able, and cannot be set up in a supple- mental answer by way of amendment. Third Ave. Sav. Bank v. Dimock, 24 N. J. Eq. 26. 1. See Gilchrist v. Gilchrist, 44 How. Pr. (N. Y. Supreme Ct.) 317, where the question is discussed. Statute of Limitations. See Stull v. Goode, 10 Heisk. (Tenn.) 58; Cock v. Evans, 9 Yerg. (Tenn.) 287; McRae v. David, 7 Rich. Eq. (S. Car.) 375; Per- cival v. Caney, 14 Jur. 473; and cases cited in Gilchrist v. Gilchrist, 44 How. Pr. (N. Y. Supreme Ct.) 317. In Ricketts' Appeal (Pa., 1888), 12 Atl. Rep. 60, it was held not an abuse of discretion to refuse to allow the de- fendant to amend by setting up the statute of limitations after a hearing before a master, and while the case was before the Court of Common Pleas. Statute of Frauds. See Cook v. Bee, 2 Tenn. Ch. 343. Usury. See Hill v. Colie, 25 N. J. Eq. 469; Marsh -v. Lasher, 13 N. J. Eq. 253; Hartson v. Davenport, 2 Barb. Ch. (N. Y.)77- 2. Gilchrist v. Gilchrist, 44 How. Pr. (N. Y. Supreme Ct.) 317, where de- fendant amended by pleading the stat- ute of limitations. McQueen v. Bab- cock, 3 Keyes (N. Y.) 428; White v. Turner, 2 Gratt (Va.) 502. See infra, III.. 3.* Statute of Frauds. Hann v. Barnegat, etc., Imp. Co. (N. J., 1887), 8 Atl. Rep. 531, where a motion to amend the de- fendant's answer by setting up the statute of frauds was allowed after the plaintiff had closed his testimony. "The time has been, perhaps," said Bird, N. C., "when such an amend- ment would not be allowed at any time, but happily, as I think, that time has passed." Scott v. Harris, 113 111. 447; Jackson v. Cutright, 5 Munf. (Va.) 308. Usury. When the plaintiff volun- tarily confesses the taking of usury, and there is a variance between the contract alleged and that proved, the court, in order to give the defend- ant the benefit of facts admitted, will direct an amendment of the answer on the hearing. Cox v. Westcoat, 29 N. J. Eq. 551. 3. Story Eq. PI. (loth ed.) 902. An unsworn answer may be amended on the hearing so as to admit proof of new facts in defense and to avoid a variance. Haskell v. Brown, 65 111. 29. 4. Story Eq. PI. (lothed.)g 982; De- pue v. Sergent, 21 W. Va. 326. Compare Walden v. Bodley, 14 Pet. (U. S.) 156. In Balen v. Mercier, 75 Mich. 42, the court allowed a substantial amend- ment to an unsworn answer. Mistake of Fact. In case of a plain mistake as. to facts, though not dis- covered until after argument, an amendment of the answer will be al- lowed. Welsh v. Arnett (N. J., 1889), 17 Atl. Rep. 289. To Obviate a Variance. Where an ob- jection to the relevancy or competency of the evidence is made specific for the first time in the closing argument for the plaintiff, the court will permit the defendant to so amend his answer as to obviate the objection, where the testi- mony is before the court showing a proper case therefor. Hamilton v. Southern Nevada Gold, etc., Min. Co., 33 Fed. Rep. 562; Powell v. Mayo, 26 N. J. Eq. 120. After Hearing. An answer may be 500 Of Pleadings and AMENDMENTS. Proceedings in Equity. It is erroneous to permit an amended answer to be filed in the progress of the trial, and then to proceed without giving the plaintiff an opportunity to contest the matter of the answer. 1 The instances are rare in which amendments to an answer have been allowed after the case has been heard and there has been anv expression of opinion from the court. 2 When the court is about to sign a final decree, .it is too late to amend the answer by filing a plea in bar. 3 On the rehearing of a decree, an answer cannot be amended except by consent of parties. 4 7. Of Master's Report. The court may in furtherance of justice send back a master's report for the correction of an inadvertent omission therein, 5 or an error of expression, so as to present the actual result at which he has arrived. 6 8. Of Process. Where a subpoena ad respondendum is dated be- fore, but is not in fact issued until after the filing of the bill, the mistake may be corrected by amendment. 7 And where the amended after the hearing where it may be done without interfering with the evidence. Flora v. Rogers, 4 Hayw. (Tenn.) 202. See also Rogers v. Rog- ers, 15 B. Mon. (Ky.)3&4. Pleading Tender. In Kiefer v. Rog- ers, 19 Minn. 14, the court refused to allow the defendant to amend his an- swer at the trial and plead a tender in bar of the action. Substituting New Answer. Where the defendant has filed an answer to the bill, which has been replied to, and the cause comes on for hearing, the defendant will not be permitted to withdraw his answer for the purpose of substituting another, on the ground that he had forgotten to present a ma- terial matter of the defense in his first answer; but he may be permitted to amend his answer, setting up such new matter, though in no wise to delay the hearing of the case. Tracewell v. Boggs, 14 W. Va. 524. 1. Dunn v. Dunn, I J. J. Marsh. (Ky.) 585, holding, however, that if the merits are not affected, it is error without prejudice. 2. Galloway v. Dobson, I Brock (U. S.) 119; Williams v. Savage Mfg. Co., 3 Md. Ch. 418; Cocky v. Evans, 9 Yerg. (Tenn.) 287; Campion v. Kille, 14 N. J. Eq. 229. Such amendment was allowed in Welch v. Arnett, (N. J., 1890), 20 Atl. Rep. 48. 3. Burnham v. Huffman, Walk. (Miss.) 381. In Galloway v. Dobson, i Brock. (U. S.) 119, after hearing and interlocutory decree, the court refused to allow an amendment of the answer, introducing new and important matter which ought to have been known and originally in- serted. See also India Rubber Comb Co. v. Phelps, 8 Blatchf. (U. S.) 85; Walden v. Bodley, 14 Pet. (U. S.) 156; Ruggles v. Eddy, II Blatchf. (U. S.) 524- Remand with Directions to Amend. Where an answer to a divorce bill is not verified as required by statute, the appellate court, upon directing a de- cree to be entered for the defendant, may direct that leave be granted to amend. Harrison v. Harrison, 94 Mich. 559. 4. Story Eq. PI. (roth ed.) 902. 5. Bryant v. Hendee, 40 Mich. 543, where the omission could be supplied by the exhibits attached to the report. Kanawha Valley Bank v. Wilson, 25 W. Va. 256. 6. Beach Mod. Eq. Pr. 698; Hey- wood v. Miner, 102 Mass. 466. If a decree has been founded on the report, the decree must first be vacated before the report can be amended. Utica Ins. Co. v. Lynch, 2 Barb. Ch. (N. Y.)573- 7. Dinsmore v. Westcott, 25 N. J. Eq. 302, where it was also held that a defect in the affidavit of mailing a copy of the notice to an absent defendant, in not showing that the place to which it was directed was the defendant's post-office address, may be remedied by amendment. Of Pleadings and AMENDMENTS. Proceedings in Equity. subpoena was inadvertently made returnable on Sunday, it was amended so as to make it returnable on the Monday following. 1 9. Leave to Amend a. WHEN NECESSARY. After any pleading or other matter has been filed, no alteration can be made in it without the sanction of a previous order. 3 Before replication, an order for amending the bill is usually ob- tained as of course, 3 but an amendment of the bill at a subse- quent stage, 4 or an amendment of the answer, 5 can be made only by special leave of the court upon application therefor. 6 1. McEvoy v. School Trustees, 38 N. J. Eq. 420. 2. i Daniell Ch. Pr. (ist Am. ed.) 519; Luce v. Graham, 4 Johns. Ch. (N. Y.) 170. See also Baldwin v. Love, 2 J. J. Marsh. (Ky.) 489; Young v. Bennett, 7 Bush (Ky.) 474; Baker v. Baldwin, I R. I. 489; Roberts v. Stigleman, 78 111. 120; Thebaut v. Canova, n Fla. 143. See also Cam- den, etc., R. Co. v. Stewart, 19 N. J. Eq. 69. Objection on Appeal. An objection to an amended bill, that it was not filed with leave of the court, as required by a rule, cannot be made for the first time in the appellate court. Clements v. Moore, 6 Wall. (U. S.) 299. Waiver of Objection. And the ab- sence of an order allowing an amend- ment will not cause a reversal where the case was tried without objection on that ground. Bondurant v. Sibley, 37 Ala. 565; Swatts v. Spence, 68 Ga. 496. See also Farmers' L. & T. Co. v. Reid, 3 Edw. Ch. (N. Y.) 414. Rescission of Order. It is not error to allow the plaintiff to rescind an order for the amendment of his bill granted upon his application and be- fore an amendment is actually made. Brooks v. Colby, 25 Ga. 634. 3. i Daniell Ch. Pr. (ist Am. ed.) 535; United States Equity Rules 28, 29; Buckley v. Corse, i N. J. Eq. 504. See also Holland v. Trotter, 22 Gratt. (Va.) 136. 4. Baker v. Baldwin, i R. I. 489; Hammond v. Place, Harr. (Mich.) 438; Walsh v. Smyth, 3 Bland (Md.) 9; Georgia R., etc., Co. v. Milnor, 8 Ga. 313; Molyneaux v. Collier, 13 Ga. 406; Terry v. McLure, 103 U. S. 442 ; Bald- win v. Love, 2 J. J. Marsh. (Ky.) 489. Effect of Want of Leave. A motion for an injunction based upon an amendment made without leave will be dismissed. Baker v. Baldwin, i R. I. 489. 5. Thomas v. Frederick County School Visitors, 7 Gill & J. (Md.) 369; Warren v. Twilley, 10 Md. 39; Huff- man z/. Hummer, 17 N. J. Eq. 269. See also Graves v, Niles, Harr. (Mich.) 332. When Actual Filing Unnecessary. Upon a petition that an amended an- swer attached be allowed, an order of the chancellor in vacation, directing that the amendment be filed as of the date of the order, is equivalent to an allowance of the amendment, and may be considered as part of the plead- ings before it is actually filed with the register. Blanks v. Walker, 54 Ala. 117. United States Equity Rule 60 provides that " after an answer is put in it may be amended, as of course, in any mat- ter of form, or by filling up a blank, or correcting a date, or reference to a document, or other small matter, and be resworn at any time before a repli- cation is put in or the cause set down for hearing upon bill and answer. But after replication or such setting down for hearing it shall not be amended in any material matters, as by adding new parties, facts, or defenses, or qualify- ing or altering the original statements, except by special leave of the court, or a judge thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by affidavit; and in every case where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed and added as a distinct amendment to the original answer, so as to be distinguishable therefrom." 6. Order ex Mero Motu. No error can be predicated of the neglect of the court to order an amendment when no application was made therefor. State Bank v. Ellis, 30 Ala. 478; Beatty v. Brown, 85 Ala. 209; Hollis v. Border, 10 Tex. 360. Implied Leave. The refusal of the 5 02 Of Pleadings and AMENDMENTS. Proceedings in Equity. b. APPLICATION. An application for leave to amend should be made in writing, setting forth the proposed amendment, 1 and sup- ported by affidavit of its materiality and the reasons why it was not inserted in the original pleading. 58 The affidavit required is that of the party himself, which cannot be dispensed with except under special circumstances, 3 although it may, if deemed neces- sary, be supplemented by that of his solicitor. 4 Where the former pleading was verified, oath must be made to the truth of the pro- posed amendment. 5 court to strike out an amendment to a bill because it was filed without leave is tantamount to granting leave. Ward v. Whitfield, 64 Miss. 754. Motion to Dismiss. Where an amend- ment to a bill was filed and service acknowledged, with the express reser- vation of the right to demur thereto, but no order appeared allowing such amendment, it was not too late to move to dismiss at the hearing of the case. Hart v. Henderson, 66 Ga. 568. 1. Baker v. Baldwin, i R. 3 489; Freeman v. Michigan State Bank, Harr. (Mich.) 311; Hammond v. Place, Harr. (Mich.) 438; U. S. v. Atherton, 102 U. S. 375; Mercantile Nat. dank v. Carpenter, 101 U. S. 567; Graham v. Skinner, 4 Jones Eq. (N. Car.) 94; Campbell v. Powers, 139 111. 128. Counter-affidavits. Affidavits deny- ing the truth of matter proposed to be inserted in a bill by way of amend- ment are no sufficient objection to the application to amend. Coster v. Gris- wold, 4 Edw. Ch. (N. Y.) 364; Objection Reserved. Where the de- fendant objects to an application for leave to file an amended bill, and states that he will present his objection on motion to strike it out, the motion to strike out may be considered as if it were an application to file the amendment with objections thereto. Metropolitan Nat. Bank v. St. Louis Dispatch Co., 38 Fed. Rep. 57. Service of Copy. The English prac- tice of furnishing an office copy of a proposed amendment has not been adopted in Pennsylvania. Rose v. Rose, i Phila. (Pa.) 365. Motion by Defendant to Amend Bill. The plaintiff cannot on motion of the defendant be compelled to amend his bill so as to expose supposed defects in his case. Phelps v. Elliott, 23 Blatchf. (U. S.) 470, 26 Fed. Rep. 881. 2. Cook v. Bee, 2 Tenn. Ch. 344; Bowen v. Cross, 4 Johns. Ch. (N. Y.) 375; Graham v. Skinner, 4 Jones Eq. (N. Car.) 94; McKim v. Thompson, i Bland (Md.) 150; Thomas v. Doub, i Md. 252; Dougherty v. Murphy, 10 Phila. (Pa.) 509; Molyneaux v. Coll- ier, 13 Ga. 406; Jones v. Kennicott, 83 111. 484; Robinson -v. Woodson, 33 Ark. 307; Reynolds v. West, 32 Ark. 244; Taylor v. Dodd, 5 Ind. 246; Huff- man v. Hummer, 17 N. J. Eq. 270; Bell v. Hall, 5 N, J. Eq. 49. See also Martin v. Atkinson, 5 Ga. 390. When Affidavit Unnecessary. There is no necessity of an affidavit for the allowance of an amendment to a bill after the hearing when the court is satisfied that the evidence before it will make a case for relief under a bill differently framed; and when such amendment is allowed without affi- davit it will be presumed that the court was satisfied. Booth v. Wiley, 102 111. 84; Lewis v. Lamphere, 79 111. 187. Amendment by Executors. Executors may be allowed to amend a bill filed by their testator, although the amend- ment embraces statements which may never have been made by him, and although they offer no excuse for not having incorporated it in the original bill. Coster v. Griswold, 4 Edw. Ch. (N. Y.) 364- Application to Amend Pleas. Where application is made to amend a plea the court always requires to be told precisely what the amendment is to be, i Daniell Ch. Pr. (6th Am. ed.) 704; Beach Mod. Eq. Pr. 320; Freeman v. Michigan State Bank, Harr. (Mich.) 311; and how the slip happened; and this must in general be presented by affidavit, i Daniell Ch. Pr. (6th Am. ed.) 704- 8. Cook v. Bee, 2 Tenn. Ch. 344; Verplanck v. Mercantile Ins. Co., i Edw. Ch. (N. Y.) 56. 4. Cook v. Bee, 2 Tenn. Ch. 343; Taylor v. Dodd, 5 Ind. 246. 5. i Foster Fed. Pr. (2d ed.) 168, 503 Of Pleadings and AMENDMENTS. Proceedings in Equity. 10. How Amendments are Made a. OF BILLS Should be Designated. Whatever may be the nature of the amendment, it should be so perspicuously and distinctly introduced and placed upon the record as to afford the means of readily distinguishing the origi- nal bill from each one of the amendments to it. 1 By interlineations. Short and apparently unimportant amend- ments, such as the mere correction of a verbal error, the altera- tion, striking out, or introduction of a name, or the making of a single allegation not materially changing the general structure of the bill, may be made by interlineations or by insertions in the margin. 3 By Amended Bill. But if there be much new matter to be intro- duced, it should be done by a separate amended bill. 3 citing Rodgers v. Rodgers, i Paige (N. Y.) 424; to which may be added Rogers v. De Forest, 3 Edw. Ch. (N. Y.) 171; Jones v. Kennicott, 83 111. 484; Huffman v Hummer, 17 N. J. Eq. 270, where it was held that the ad- mission by the complainant's solicitor of the truth of the proposed answer could not dispense with this require- ment, unless, perhaps, where the ad- mission was unequivocal and in writ- ing. Waiver of Objection. When the pro- posed amendment to an answer was not verified, and was objected to on that ground, the appellate court will presume that had it been allowed it would have been verified at once. Grace v. Newbre, 31 Wis. 19. 1. Walsh v. Smyth, 3 Bland (Md.) 9, where it was also said that it should be so made as to show the day on which each of the amendments was put upon the record. Luce v. Graham, 4 Johns. Ch. (N. Y.) 170. Should be Actually Made." The bill when amended should either be re- engrossed or the amendments actually made by canceling and interlining or by substitution of sheets in the place of the canceled parts, containing the amendments to be inserted." Wilson v. King, 23 N. J. Eq. 150. Stipulation for Amendment. Neither an agreement between solicitors for an amendment nor an order giving leave to amend will avail on final hearing, if no amendment is actually made. Wilson v. King, 23 N. J. Eq. 150; Jones v. Davenport, 45 N. J. Eq. 78; Hudnit v. Tomson. 26 N. J. Eq. 239. Compare Arnaud v. Grigg, 29 N. J. Eq. I. Where a foreclosure bill contained no allegation as to taxes paid by the mortgagee, but it was stipulated of record before the hearing that the complainant had filed vouchers show- ing that he had paid the taxes on the premises for certain years, and the complainant asked the court in the stipulation to allow the amount in the decree when made, it was held that although it was decidedly irregular it amounted to an amendment so as to support a decree for the taxes upon the vouchers filed. Wright v. Lang- ley, 36 111. 381. Amendments How Designated. " By annexing the engrossed amendments to the original bill, and by referring in that part of the bill where the amend- ments should have been inserted to the annexed amendments, and by re- ferring at each amendment to the proper place for its insertion in the original bill, the record will be kept from being defaced, and all the requi- site certainty and convenience will be obtained." Luce v. Graham, 4 Johns. Ch. (N. Y.)i73. 2. i Beach Mod. Eq. Pr. 153; Luce v. Graham, 4 Johns. Ch. (N. Y.) 170; Ayres v. Valentine, 2 Edw. Ch. (N.Y.) 451; Walsh v. Smyth, 3 Bland (Md.) 9; Alabama Warehouse Co. v. Jones, 62 Ala. 550; Brooks v. Colby, 25 Ga. 635, where it was said that under the practice in Georgia the bill is seldom engrossed anew. See also Melton v. Withers, 2 S. Car. 561. Interlineation with Different Ink. An amendment by interlineation with dif- ferent ink needs no footnote to explain it. Werborn v. Austin, 82 Ala. 498. 3. Walsh v. Smyth, 3 Bland (Md.) 9; Luce v. Graham, 4 Johns. Ch. (N. Y.) 170; Peirce v. West, 3 Wash. (U. S.) 54 Of Pleadings and AMENDMENTS. Proceedings in Equity. Form of Amended Bill. The rule is that the amended bill should state no more of the original bill than may be necessary to intro- duce and make intelligible the new matter, which should alone constitute the chief subject of the bill. 1 Verification. Where the original bill is sworn to, an amendment which contains substantial matter, and is not a mere formal amendment, must be verified to the same extent as the original bill. 2 signature of Counsel. The usual practice is for counsel to re-sign amendments where they are substantial. 3 b. OF ANSWERS. It was formerly the practice of the court, if it saw sufficient ground for so doing, to permit the defendant to amend his answer; 4 but this practice was superseded in part by an order of Lord Thurlow which forbade taking the answer off the file, yet permitted a supplemental answer to be filed, by that course leaving to the parties the effect of what had been sworn to with the explanation given by the supplemental answer. 5 This practice has been since adopted in all cases in which it is desired to correct a mistake in an answer as to a matter of fact. 6 355; Fearey v. Hayes, 44 N. J. Eq. 425; Setzer v. Beale, 19 W. Va. 274. Injunction Bill. In Layton v. Evans, 2 N. J. Eq. 387, it was held in con- formity with a rule of court that no alteration can be made in an injunc- tion bill after injunction issued and served, but that an amended bill must be engrossed and annexed to the original. See also Lanning v. Heath, 25 N. J. Eq. 425. 1. Peirce v. West, 3 Wash. (U. S.) 355; Walsh v. Smyth, 3 Bland (Md.) 9; Luce v. Graham, 4 Johns. Ch. (N. Y.) 170; Willis v. Evans. 2 B. & B. 225. In amending, it is not correct to state in the amended bill, "and your orator by way of amendment, etc., showeth." Grim v. Wheeler, 3 Edw. Ch. (N. Y.)448. 2. Walker v. Ayres, i Iowa 449; Gunn -v. Blair, i Barb. (N. Y.) 539; Rodgers v. Rodgers, i Paige (N. Y.) 424; Whitmarsh v. Campbell, 2 Paige (N. Y.) 67; Renwick v. Wilson, 6 Johns. Ch. (N. Y.) Si; Parker v. Grant, I Johns. Ch. (N. Y.) 434; Ver- planck v. Mercantile Ins. Co., I Edw. Ch. (N. Y.) 46; Hill v. Hill, 53 Vt. 578; Semmes v. Boykin, 27 Ga. 47. But see Mount Olivet Cemetery Co. v. Budeke, 2 Tenn. Ch. 480. Objection on Appeal. In Briggs v. Briggs, 20 Mich. 34, though an amend- ment to a divorce bill was not sworn to, as required by the practice of the court, the objection, being first made on appeal, was disregarded. When Verification Unnecessary. A sworn bill may be amended in its prayer and by adding a new and proper party plaintiff without swear- ing to the amendment. Livingston v. Marshall, 82 Ga. 281, holding, also, that immaterial error in allowing trivial amendments without requiring them to be sworn to will not work a reversal. So, where a bill for an account was sworn to for the purpose of obtaining an injunction, it was held that an amendment relating solely to the basis on which the account should be stated might be allowed without verification. Gregg v. Brovver, 67 111. 525. 3. i Daniell Ch. Pr. (6th Am. ed.) 313. 4. i Daniell Ch. Pr. (ist Am. ed.) 339. 5. i Daniell Ch. Pr. (ist Am. ed.) 339. 6. i Daniell Ch. Pr. (ist Am. ed.) 339; Beach Mod. Eq. Pr. 402; Huffman v. Hummer, 17 N. J. Eq. 271; Van- dervere v. Reading, 9 N. J. Eq. 446; Graham v. Skinner, 4 Jones (N. Car.) 94; Fulton County v. Mississippi, etc., R. Co., 21 111. 338; Smith v. Babcock, 3 Sumn. (U. S.) 583. Compare Arnaud v. Grigg, 29 N. J. Eq. I. In Georgia. Lord Thurlow's order, having been made since the revolu- tion, was held not to be binding in Georgia. Oliver v. Persons, 29 Ga. 505 Of Pleadings and AMENDMENTS. Proceedings in Equity. But the old course of taking the answer off the file and amending it is still pursued in cases of error or mistake in matters of form; 1 the court always making it a part of the order, however, that immediately upon the correction being made the answer shall be resworn. 2 11. Terms. The court has a discretionary power to prescribe the terms on which amendments of pleadings shall be allowed, 3 and the exercise of this discretion will not be reviewed upon appeal. 4 If, at the time the order for amendment is made, none 568. 390. See Martin v. Atkinson, 5 Ga. 1. i DaniellCh. Pr. (istAm. ed.)342; Vandervere v. Reading, 9 N. J. Eq. 446; Bell v. Hall, i N. J. Eq. 49. Striking out Name. Where an an- swer purported to be the joint and several answer of three defendants, but was signed and sworn to by only two of them, the latter were permitted to take it from the files and erase the name of the other defendant and file it as their own. Bailey Washing Mach. Co. v. Young, 12 Blatchf. (U.S.) 199. See United States Equity Rule 60. Unsworn Answer. The defendant was permitted to amend an unsworn an- swer on file by retracting an admission made by mistake. Taylor v. Dodd, 5 Ind. 246. But the defendant cannot have the benefit of an oath to an amended an- swer when the original was not sworn to, an oath not having been required to it. De France v. Howard, 4 Iowa, 524. But see White v. Hampton, 9 Iowa, 181. Unnecessary Repetition. An answer to an amended bill is impertinent if it repeats what was said in the answer to the original bill. Gier v. Gregg, 4 McLean (U. S.) 202. Amendments by Affidavits. Amend- ments in the form of affidavits, not referring to the answer on file, are irregular, and a motion to dissolve an injunction will not be heard upon them. Mason v. Detroit City Bank, Harr. (Mich.) 222. 2. i Daniell Ch. Pr. (ist Am. ed.) 343; Vandervere v. Reading, 9 N. J. Eq. 446. 3. Rives v. Walthall, 38 Ala. 329; Mahone v. Williams, 39 Ala. 202; Chamblessz/. Taber, 26 Ga. 167; Clark v. Keene's First Congregational Soc., 46 N. H. 272; Sheets v. Selden, 7 Wall. (U. S.) 416. See also Hancock v. Carlton, 6 Gray (Mass.) 39. In Furtherance of Justice. The terms must be such as not to amount to a negation of the right. Burney v. Ball, 24 Ga. 505; and not to injure others who are not in default. McDougald v. Dougherty, u Ga. 570. After Master's Report. Upon permit- ting an amendment of the bill after the report of a master, the allowance of costs is a mere matter of discre- tion. Camp v. Waring, 25 Conn. 520. In Drew v. Beard, 107 Mass. 64, the plaintiff, upon amending his bill at that stage, was ordered to pay the defendant's costs, and, if he prevailed, to take no costs up to the time of the amendment. See also Nellis v. Pen- nock Mfg. Co., 38 Fed. Rep. 379. Special Terms. " Let the courts re- fuse to allow amendments except on such terms as shall prevent delay of the trial. Let them exact of the ap- plicants for leave to amend, undertak- ings to go to trial at an early day; waivers of all formal objections of every kind; waivers of the proof of documents and of the production of books; waivers of the proof of all matters not really in issue, whenever it can be done consistently with a re- gard to what is reasonable and equi- table." Thomas v. Horn, 21 Ga. 177- That the court may impose special terms other than the payment of costs, see Clark v. Keene's First Congrega- tional Soc., 46 N. H. 272; Hancock v. Carlton, 6 Gray (Mass.) 39. Waiver by Acceptance. The accept- ance of the terms prescribed as a condition of amending the bill is a waiver of objection to the order. Ma- hone v. Williams, 39 Ala. 202. 4. McLane v. Riddle, 19 Ala. 180, where an amendment of the bill was allowed without terms. Sheets v, Sel- den, 7 Wall. (U. S.) 416; Mahone v. Williams, 39 Ala. 202; Thomas v. Horn, 21 Ga. 177. 506 Of Pleadings and AMENDMENTS. Proceedings in Equity. of the defendants have appeared, the plaintiff may amend with- out payment of any costs. 1 Amendment of the bill after answer, 2 or at the hearing, is usually made upon payment of costs ; 3 but where the facts were known to the defendant, yet were not disclosed in his answer, and were not discovered by the plaintiff until the hearing, he was per- mitted to amend without costs. 4 1. i Daniell Ch. Pr. (6th Am. ed.) 411. In Smith Ch. Pr. 250, it is said: " A bill may be amended without costs, if the order to amend is obtained before the defendants have appeared; or if some of the defendants have appeared and others have not, it may be amend- ed as to those who have not appeared, and as to those who have appeared, on the terms of amending their office copies." 2. Horn v. Clements (N. J., 1887), 8 Atl. Rep. 530; Fearey v. Hayes, 44 N. J. Eq. 425 ; Jennings v. Springs, Bailey Eq. (S. Car.) 181; Rogers v. Moor, i Root (Conn.) 472; Beekman v. Waters, 3 Johns. Ch. (N. Y.) 410. Substituting New Plaintiff. In Jen- nings v. Springs, Bailey Eq. (S. Car.) 181, where an amendment was made by substituting a new plaintiff, it was allowed upon payment of all the costs up to the time of the amendment, as well as the costs of the amendment itself. Making a Different Case. " Where a different case is made by the amend- ment, the plaintiff should be taxed with the costs, and the defendant made to pay no more than he would have been put to had the bill been brought right originally." McDougald v. Williford, 14 Ga. 665. Party Suing In Forma Pauperis. If a party suing in forma pauperis amends his bill after answer, it must be upon payment of costs as in ordinary suits; if he has a meritorious claim to amend without costs, he must apply to the court by special motion. Richardson v. Richardson, 5 Paige (N. Y.) 58. Before and After Replication. In Mt. Olivet Cemetery Co. v. Budeke, 2 Tenn. Ch. 480, it was said that, where an amendment of the bill is allowed after answer or other defense made, and the amendment merely serves to develop the case made by the bill, the only costs which ought to be charged upon the plaintiff are the costs of the amendment, if the court is satisfied that the amendment is not resorted to for delay; but that upon amendment of the bill after replication or setting the plea or demurrer for hearing, the com- plainant should be charged with the costs attending the filing of the plea, and setting it for hearing, and that the court might in a proper case order the payment of all costs. See French v. Shotwell, 4 Johns. Ch. (N. Y.) 505. Abandoning Amendment. Where the complainant obtains an order for leave to amend his bill upon payment of the costs of the defendant's answer and the costs of opposing the application, he is not compelled to pay the costs of the answer if he elects to proceed without making the proposed amend- ment; but in that case he must pay the costs of opposing the application to amend. Van Ness v. Cantine, 4 Paige (N. Y.) 55. After Demurrer. The terms upon which the plaintiff shall be allowed to amend after demurrer sustained are discretionary. Sheets v. Selden, 7 Wall. (U. S.) 416. In Noyes v. Sawyer, 3 Vt. 160, upon the allowance of a demurrer for want of proper parties, the plaintiff was per- mitted to amend on payment of the defendant's costs of the term. Where a demurrer was filed, and the court, without passing upon the de- murrer, permitted the plaintiff to amend, the defendant was allowed his reasonable costs. Edison Electric Light Co. v. Mather Electric Co., 53 Fed. Rep. 244. See Cunningham v. Pell, 6 Paige (N. Y.) 655. Upon overruling a demurrer, there being faults in pleading on both sides, each party was allowed to amend with- out paying costs to the other. Atwill v. Ferrett, 2 Blatchf. (U. S.) 49. In Young v. Bilderback, 3 N. J. Eq. 206, a demurrer was allowed with leave to amend on payment of costs. 3. Battle v. Mutual L. Ins. Co., 10 Blatchf. (U. S.) 417; Neale v. Neale, 9 Wall. (U. S.) i; Booth v. Wiley, 102 111. 84. 4. Wilson v. Brown, 13 N. J. Eq. Ci Pleadings, etc., at AMEJ\ DME& TS. Common Law, under Codes, etc. When the cause is remanded from an appellate court with leave to amend the bill without prejudice to any proceedings, the plain- tiff can be placed in no better position as to costs than if the bill had been dismissed without prejudice, and must pay all costs to the time a decree is entered on the mandate. 1 Amendment of the answer may be allowed upon payment of taxable costs to the time of the amendment. 2 III. OF PLEADINGS AND PROCEEDINGS AT COMMON LAW AND UNDER CODES AND STATUTES 1. Power to Amend a. INHERENT. The power of amendment is incidental to the exercise of all judicial power. 3 Justices of the peace may allow an amend- ment of the pleadings in cases pending before them. 4 280. See also Harrigan v. Bacon, 57 Vt. 644. Effect of Laches. But where an amendment is based upon knowledge obtained from the defendant, the plaintiff will be required to pay the costs accruing after the time when the motion to amend could and should have been made. Hoyt v. Smith, 27 Conn. 468. 1. Church v. Holcomb, 45 Mich. 29. See also Arendell v. Blackwell, i Dev. Eq. (N. Car.) 358 ; Fenno v. Coulter, 14 Ark. 38. 2. Arnold v. Chesebrough, 33 Fed. Rep. 571. 3. Tilton v. Cofield, 93 U. S. 166; Augusta v. Moulton, 75 Me. 551; Adams v. Main, 3 Ind. App. 232. See also Fitch v. Stevens, 2 Met. (Mass.) 505; Gilchrist v. Kitchen. 86 N. Car. 20; Pennsylvania, etc., R. Co. v. Bun- nell, 81 Pa. St. 414; Smith v. Rathbun, 75 N. Y. 122; Ellison v. Georgia R. Co. , 87 Ga. 691 ; Bailey v. Jones, 14 Ga. 384: Mandel v. Peet, 18 Ark. 247. " Every court, whether of general or limited jurisdiction, has the power to permit such amendments to be made in the pleadings while the cause is in fieri as will enable it to fulfil the end of its creation the administration of justice." Murry v. Harper, 3 Ala. 745- Validating Acts. The legislature has not the power to legalize existing pleadings which are substantially de- fective without first requiring them to be amended. People v. Mariposa County, 31 Cal. 196. Substitution for Lost Pleading. Where an original pleading has been lost or mislaid it is proper for the court to allow another one to be filed as a sub- stitute. Turner v. Lambeth, 2 Tex. 365; Wilkerson v. Branham, 5 Ala. 608. See also ./Etna Ins. Co. v. Sparks, 62 Ga. 187 ; Newman v. Dodson, 61 Tex. 91. 4. Hanlin v. Baxter, 20 Kan. 134 ; Snyder v. Winsor, 44 Mich. 140: Lin- hart v. Buiff, ii Cal. 280; Butler v. King, 10 Cal. 342. Compare Wilson v. Bayley, 42 N. J. L. 132. But not after the cause is submitted and taken under advisement. Webster v. Williams, 69 Mich. 135. In New York a justice of the peace has ample power at any time before the trial or during the trial, to amend the pleadings if substantial justice will be promoted thereby. New York Code, 2944. And it has been held that g 723 of the Code, authorizing " the court " to allow amendments, applies to justices of the peace. Lapham v. Rice, 55 N. Y. 472; Ackley v. Tarbox, 31 N. Y. 564; Lowe v. Rommell, 5 Daly (N. Y.) 17. A justice may allow an amendment to conform to the proof. Schork v. Moritz (Super. Ct.), 24 N. Y. St. Rep. 898; Doughty v. Crozier, 9 Abb. Pr. (N. Y. C. PI.') 411. He may allow an amendment changing the action from tort to contract. Bigelow v. Dunn, 36 How. Pr. (N. Y. Supreme Ct.) 120; DeWitt v. Greener, n Civ. Pro. Rep. (N. Y. Co. Ct.) 327. But he cannot allow an amendment at the trial so as to introduce a new cause of action. Dows v. Morrison (C. PL), 20 N. Y. Supp. 860. In a proper case it is the imperative duty of the justice to allow an amend- ment, and reversible error to refuse. Smith -v. Mitten, 13 How. Pr. (N. Y. Supreme Ct.) 325; Wood v. Shultis, 4 Hun (N. Y.) 309; Hilliard v. Austin, 17 Barb. (N. Y.) 141; Leonard v. Fos- ter, 7 Hun (N. Y.) 464; Walsh v. Cor- Hett, 17 Hun (N. Y.) 27; Ryan v. 508 Of Pleadings, etc , at AMENDMENTS. Common Law, under Codes, etc. So far as the mere power to amend is concerned, the statutes of amendment are only declaratory of the common law. 1 At common law amendments can be made in all cases in furtherance of justice at any time before final judgment is entered and the term passed, 3 and there is no distinction in this respect between penal and other actions. 3 Lex Fori Governs. The practice of the lex fori in respect of amend- ments will control regardless of the practice in the state where the cause of action arose. 4 b. SOMETHING TO AMEND OR AMEND BY. At common law the general rule was that there must be something in the record to amend by. 5 But under the statutes of amendment the power Lewis, 3 Hun (N. Y.) 429; Turck v. Richmond, 13 Barb. (N. Y.) 533; Vaughn v. Lego (Supreme Ct.). 17 N. Y. St. Rep. 279. See further, as to the power and duty of justices in respect of amendments, Jaycox v. Pinney, 62 Barb. (N. Y.) 344; Gilmore v. Barnett, 20 Hun (N. Y.) 514; Birdsall v. Fuller, ii Hun (N. Y.) 204; Agreda v. Faul- berg, 3 E. D. Smith (N. Y.) 178; Loyd v. Fox, i E. D. Smith (N. Y.) 101; Fulton v. Heaton, i Barb. (N. Y.) 552; Stern v. Drinker, 2 E. D. Smith (N. Y.) 401; White v. Stevenson, 4 Denio 193; Glasse v. Keulsen, 3 Abb. Pr. (N. Y.) 100; Waldheim v. Sichel, I Hilt. (N. Y.) 45; Woolley v. Wilber, 4 De- nio (N. Y.) 570; Bull v. Colton, 32 Barb. (N. Y.) 94; Colvin v. Corwin, 15 Wend. (N. Y.) 557; Monteith v. Cash, I E. D. Smith (N. Y.) 412; Andrews v. Thorp, i E. D. Smith (N. Y.) 615; Hinds v. Page, 6 Abb. Pr. N. S. (N. Y. Co. Ct.)s8; Price v. Peters, 15 Abb. Pr. (N. Y. C. PI.) 197; Hall v. Olney, 62 Barb. (N. Y.) 27. 1. Christal v. Kelly, 88 N. Y. 285; Lane v. Beam, 19 Barb. (N. Y.) 52; Smith v. Rathbun, 75 N. Y. 122; Prindle v. Aldrich, 13 How. Pr. (N. Y. Su- preme Ct.) 466; Chouteau v. Hewitt, 10 Mo. 131; Knott v. Taylor, 96 N. Car. 553; Coombs v. Low, R. M. Charlt. (Ga.) 395. Contra. In Irwin v. Paulett, I Kan. 418, it was held that the authority to allow amendments is derived solely from the provisions in the Code. 2. Chouteau v. Hewitt, 10 Mo. 131; Coombs v. Low, R. M. Charlt. (Ga.)395. 3. Hart v. Baltimore, etc., R. Co., 6 W. Va. 336; Barber v. McHenry, 6 Wend. (N. Y.) 516; Merriam v. Lang- don, 10 Conn. 460; Beates v. Retallick, 23 Pa. St. 288; Griffith v. Eshelman, 4 Watts (Pa.) 55; Megargellz/. Hazleton Coal Co., 8 W. & S. (Pa.) 342; Davis v. Saunders, 7 Mass. 62; Mitchell v. Tib- betts, 17 Pick. (Mass.) 298; Hamilton v. Boiden, i Mass. 50; Thornton v. Townsend, 39 Me. 181; Canal St. Gravel Road Co. v. Paas, 95 Mich. 372; Jones v. Ross, 2 Dall. (U. S.) 143; Childress v. Nashville, 3 Sneed (Term.) 347; Washington v. Frank, i Jones (N. Car.) 436. Compare U. S. v. Batch- elder, 9 Int. Rev. Rec. 98. Leave to amend may be refused where it would not be in furtherance of justice. Palmer v. York Bank, i3 Me. 166. Real Actions. Amendments may be allowed in real actions. Bird v. Decker, 64 Me. 550; Parker v. Murch, 64 Me. 54; Howard v. Hough- ton, 64 Me. 445; Howe v. Wilds, 34 Me. 566; Rowell v. Small, 30 Me. 30; Holmes v. Holmes, 2 Pick. (Mass.) 23; Means v. Welles, 12 Met. (Mass.) 356. In Rand v. Dodge, 12 N. H. 67, it was held that a writ of entry could not be amended by striking out one of the demandants. 4. South Car. R. Co. v. Nix, 68 Ga. 572. 5. Johnson v. Mayrant, i McCord (S. Car.) 484; Nelson v. Barker, 3 McLean (U. S.) 379; Lake v. Morse, ii 111. 587. See also Bailey v. Palmer, 5 Ark. 208. " Nothwithstanding this general rule Tidd says and quotes the cases in sup- port of his statement that the courts have, in particularinstances, permitted the plaintiff to amend his declaration after issue joined in cases where there was nothing to amend by. Tidd's Pr. 713." Daly, C. J., in Diamond v. Will- iamsburgh Ins. Co., 4 Daly (N. Y.) 494. 59 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. of the court is not now considered to be thus limited. 1 Neverthe- less, there must be something to amend, and a declaration or com- plaint which wholly fails to state any cause of action whatever cannot be amended, at least in those states where an amendment introducing a new cause of action is not allowed. 2 Where, however, the defect in the declaration or complaint consists merely in a faulty statement of the facts constituting the cause of action, it may be cured by amendment. 3 c. RELATION BETWEEN FEDERAL AND STATE PRACTICE. A federal statute provides for the amendment of defects in plead- ings and proceedings in civil actions. 4 And another provision 1. Gregg v. Gier, 4 McLean (U. S.) 208. 2. Lilly v. Charlotte, etc., R. Co., 32 S. Car. 142; Bleckeley v. Branyan, 28 S. Car. 449; Kennerty v. Etiwan Phosphate Co., 21 S. Car. 226; Phin- ney v. Phinney, 17 How. Pr. (N. Y. Supreme Ct.) 197 (query); State v. Rottaken, 34 Ark. 144; Mexican Mill v. Yellow Jacket Silver Min. Co., 4 Nev. 40; Smith, Petitioner, 15 Pick. (Mass.) 446; Guilford v. Adams, 19 Pick. (Mass.) 376; Bangor, etc., R. Co. v. Smith, 49 Me. 9; Simpson v. Memphis, etc., R. Co., 66 Ala. 85; Crasser v. Eckart, i Binny (Pa.) 575; Brashears v. Strock, 46 Mo. 221; Boren v. Billington, 82 Tex. 137. See alsoWoodruff v. Dickie, 5 Robt. (N. Y.) 620; Keenan v. Knight, 9 Allen (Mass.) 257; Bachus v. Mickle, 45 Ala. 445. A count for balance of account or for the amount due is amendable by adding a bill of particulars. Harring- ton v. Tuttle, 64 Me. 474. The Georgia statute expressly re- quires "enough to amend by." The question received much consideration in Ellison v. Georgia R. Co., 87 Ga. 691, where, however, the amendment was allowed. In Selma, etc., R. Co. v. Lacy, 49 Ga. 106, and Smith v. East & West R. Co., 84 Ga. 183, the amendment was denied. Objection How Raised. The question should be raised by motion to strike the amendment from the files, not by a motion to dismiss the declaration as amended. O'Shields v. Georgia Pac. R. Co., 83 Ga. 621. Waiver of Objection. If the objection to the amendment is not made in the court below it is not available in the appellate court. Robertson v. Spring- field, etc., R. Co., 21 Mo. App. 633. 3. Harvey v. Hackney, 35 S. Car. 361; Miller v. Stark, 29 S. Car. 325; Skinner -v. Grant, 12 Vt. 456: Wilson v. Pearson, 102 N. Car. 290; Pullen v. Hutchinson, 25 Me. 249; Daven- port v. Holland, 2 Cush. (Mass.) 13, where the court discussed at some length the question as to how de- fective a declaration must be in or- der to be beyond the reach of amend- ment. Wingate v. Com., 5 Cush. (Mass.) 446; Nevada County, etc.. Canal Co. v. Kidd, 28 Cal. 673;' Ellison v. Georgia R. Co., 87 Ga. 691, now the leading case in Georgia; Schmidt v. Block, 76 Ga. 823; Mitchell v. Long, 74 Ga. 94; Merritt v. Bagwell, 70 Ga. 578; Central R., etc., Co. v. Denson, 83 Ga. 266; Snook v. Raglan, 89 Ga. 251; Tatum v. Allison, 31 Ga. 337; Ware v. Macon City Bank, 59 Ga. 840; Bolton v. Georgia Pac. R. Co., 83 Ga. 659; Cartter v. Cotter, 88 Ga. 286; Southwestern R. Co. v. Bryant, 67 Ga. 212; Hardee v. Lovett, 83 Ga. 203; Verdery v. Barrett, 89 Ga. 349; Dill v. Jones, 3 Ga. 79; Strawn v. Kersey, 22 Ga. 586. 4. " No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes in any court of the United States shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such de- fect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, to- gether with his demurrer as the cause thereof : and such court shall amend every such defect and want of form, other than those which the party de- murred so expresses : and may at any 510 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. declares in substance that the practice at law in the federal courts shall conform to the practice of the state in which the court is held. 1 Where the state statute allows amendments at any stage of the case as a matter of right, the federal court will not exer- cise a discretion to deny the amendment. 2 In allowing amendments to conform to the proof, the federal court will follow the state statute defining a material variance. 3 The state practice in respect of the allowance of amendments introducing a new cause of action will govern the federal court. 4 The mode of amending the complaint as of course, under the state practice, 5 and the state practice in allowing amendments after verdict by increasing the amount of damages claimed, will be followed. d. AMENDMENT OF JURISDICTIONAL AVERMENTS. A court without jurisdiction has no authority to allow an amendment to pleadings in the suit. 7 Where the court has jurisdiction of the subject-matter, and the defendant has appeared in court to contest the merits, the declara- tion or complaint may be amended by inserting averments neces- sary to perfect the jurisdiction of the court upon the record. 8 time permit either of the parties to amend any defect in the process or pleading, upon such conditions as it shall, in its discretion and by its rules, prescribe." U. S. Rev. St. ^ 954. 1. " The practice, pleadings, and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts shall conform, as near as may be, to the practice, pleadings, and forms, and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwith- standing." United States Rev. St. 914. ' ' As near as may be ' allows only necessary variations from the state methods growing out of the different organization of the courts, and other similar matters." Lewis v. Gould, 13 Blatchf. (U. S.) 216. 2. Nussbaum v. Northern Ins. Co. (District of Georgia), 40 Fed. Rep. 337. 3. Liverpool, etc., Ins. Co. z/.Gunther (District of New York), 116 U. S. 113. 4. Chamberlain v. Mensing (District of South Carolina), 51 Fed. Rep. 511. The state decisions as to what does or does not constitute a new cause of action will be followed. West v. Smith (District of Connecticut), 101 U. S. 263. 5. Rosenbach v. Dreyfuss (District of New York), i Fed. Rep. 391. 6. Eking v. Campbell (District of New York), 5 Blatchf. (U. S.) 183, where it was said that "the practice of the state courts, if settled and uni- form, should, unless there are very strong reasons in opposition, be fol- lowed." Compare Tobey v. Claflin, 3 Sumn. (U. S.) 379. Other Instances. The state practice was followed in Clark v. Sohier, i Woodb. & M. (U. S.) 368; Whitaker v. Pope (District of Georgia), 2 Woods (U.S.) 463; Henderson v. Louisville, etc., R. Co. (District of Louisiana), 123 U. S. 61, where a usee was sub- stituted for a nominal plaintiff. Fitz- patrick v. Flannagan (District of Mis- sissippi), 106 U. S. 648, where an affidavit in attachment was amended by adding a new ground for attach- ment under the authority of the Mis- sissippi Code, 1134. See also infra, IV, i, b. 1. Goff v. Robinson, 60 Vt. 633. A petition to the court of common pleas for a highway, which shows upon its face that the court has no jurisdic- tion of the application, cannot after a reference to the road commissioners and a report made by them be amend- ed so as to give the court jurisdic- tion. Dinsmore v. Auburn, 26 N. H. 356. 8. Chafee v. Postal Tel. Co., 35 S. Car. 372. See also Mitchell v. Mis- souri Pac. R. Co., 82 Mo. 106. Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Defective averments as to the residence of the parties are amend- able ;* and under authority to amend "by inserting other alle- gations material to the case," it has been held that a plaintiff may be allowed to amend his complaint by inserting allegations proper to obviate an objection that the court has no jurisdiction of the cause of action. 2 striking Out. The court may undoubtedly allow an amendment by striking out a count of which it has no jurisdiction. 3 In the Federal Courts, the want of an averment of diverse citizen- ship of the parties may be supplied by amendment, 4 and the plaintiff may amend his declaration to show that he was an alien when the action was brought instead of a citizen as alleged. 5 Limitation of the Power. In Brown v. Pond, 5 Fed. Rep. 41, Judge Choate says that the power of amendment can only be exercised in cases where the court has acquired jurisdiction over the defendant or where he has sub- mitted himself to the jurisdiction. Averment Merely Defective. In a special proceeding under North Caro- lina Laws, 1887, c. 276, to sell land in partition, a complaint which fails to allege that the plaintiff is in possession is defective merely, and the court is not without jurisdiction to grant an amend- . ment. Godwin v. Early (N. Car., 1894), 18 S. E. Rep. 973. Averment of Value of Property. Where judgment was arrested for want of jurisdiction, the declaration not alleg- ing the value of the property in con- troversy, the plaintiff was permitted to amend by adding the averment. Lanning v. Dolph, 4 Wash. (-U. S.) 629; Romero v. Luna (N. Mex., 1892), 30 Pac. Rep. 855. Petition in Drainage Proceedings. In Coolman v. Fleming, 82 Ind. 117, it was held that a petition in a drainage case might be amended even as to a jurisdictional matter. In Justice Court. A justice of the peace has the right to allow the com- plaint to be amended in the statement of a jurisdictional fact. Linhart -v. Buiff, ii Cal. 280. 1. The omission to allege in the declaration that the defendant resides in the county where suit is brought is amendable. Raney v. McRae, 14 Ga. 589; Hall v. Mobley, 13 Ga. 318. In Chaffe v. Thornton, 28 La. Ann. 837, where the petition alleged that the plarintiff resided in the City of New Orleans, without averring that it was within the state of Louisiana, an amendment was allowed instanter. Where it appears from the petition that the defendant does not reside in the county where suit is brought, and there are no allegations which bring the case within some of the exceptions to the general rule which requires in- habitants of the state to be sued in the county of their domicil, the defect may be cured by amendment. Evans v. Mills, 16 Tex. 196. 2. Frizzell v. Duffer, 58 Ark. 612. In Charlotte Planing Mills v. Mc- Ninch, 99 N. Car. 517, such an amend- ment was allowed with the consent of the defendant. After Motion to Dismiss. The Colo- rado Code expressly provides for amendments after demurrer sustained for want of jurisdiction of the subject- matter. A motion to dismiss is equiv- alent to a demurrer, and upon being overruled the plaintiff may be allowed to amend. Southwestern Land Co. v. Hickory Jackson Ditch Co., 18 Colo. 489. Amendment in Agreed Case. A sub- mission of an action upon a case stated by the parties without limiting the plaintiff's right to recover to the par- ticular form in which the action is brought, authorizes the writ to be amended in the court where it is brought into another form of which that court has original jurisdiction, although it has no jurisdiction of the action in its present form. Merrill v. Bullock, 105 Mass. 486. 3. Pollard v. Barnes, 2 Cush. (Mass.) 191. 4. Morgan v. Gay, 19 Wall. (U. S.) 81; Kelsey v. Pennsylvania R. Co., 14 Blatchf. (U. S.) 89; Hillard v. Brevoort, 4 McLean (U. S.) 24. 5. Betzoldt v. American Ins. Co., 47 Fed. Rep. 705. See also Michaelson v. Denison, 3 Day (Conn.) 294, a case 512 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc Such amendments have been allowed after a demurrer sustained, 1 pending a motion in arrest of judgment on account of the defect, 2 and have been sanctioned by the Supreme Court even where the judgment below has been reversed because the record lacked the proper jurisdictional averments. 3 2. Amendments by Referee a. POWER WHOLLY STATUTORY. Referees have no power to allow an amendment of the plead- ings in cases submitted to them unless the power is expressly con- ferred by statute. 4 b. CODE PROVISIONS. Some of the codes provide that upon the trial before a referee the latter shall have the same power as the court to allow amendments to the summons or to the plead- ings, which he may exercise in like manner and upon like terms as the same powers are exercised by the court upon a trial. 5 decided in the United States Circuit Court. 1. Fisher v. Rutherford, I Baldw. (U. S.)i88. 2. Maddox v. Thorn, 60 Fed. Rep. 217. 3. Betzoldt v. American Ins. Co., 47 Fed. Rep. 705; Parker v. Ormsby. 141 U. S. 81; Everhart v. Huntsville Col- lege, 120 U. S. 223; King Bridge Co. v. Otoe County, 120 U. S. 225; Met- calf v. Watertown, 128 U. S. 590; Menard v. Goggan, 121 U. S. 253; Conolly v. Taylor, 2 Pet. (U. S.) 556; Morgan v. Gay, 19 Wall. (U. S.) 81; Continental Ins. Co. v. Rhoads, 119 U. S. 237; Halsted v. Buster, 119 U. S. 341; Denny v. Pironi, 141 U. S. 124. 4. De La Riva v. Berreyesa, 2 Cal. 196; Eldred v. Eames, 115 N. Y. 401 (reversing 48 Hun (N. Y.) 253), where it was said that in New York the power of amendment was first con- ferred upon referees by 272 of the Code in 1857. See also the dissenting opinion of Follet, J., in the same case at general term, 48 Hun (N. Y.) 257. Referees in Special Proceedings. It was held in Eldred v. Eames, 115 N. Y. 401, reversing 48 Hun (N. Y.) 253, that the general language of the Code provision conferring power upon ref- erees in special proceedings did not obliterate the distinction between stat- utory references and those made in actions which are inherent in the nat- ure of the proceeding, and that upon a reference of a claim against the es- tate of a decedent the referee has no power of amendment, as an amend- ment would vary the matter referred. In In re Muzor's Estate, 25 N. Y. Supp. 818, 4 Misc. Rep. 818, a proceed- ing before a referee to state an admin- istrator's account, the court said that "there can be no question as to the power of a referee to grant such an amendment as the surrogate himself might grant upon a trial," citing g 2538. 2546 of the Code, and Billington v. Cahill (Supreme Ct.) 4 N. Y. Supp. 633. 5. New York Code, 1018 ; South Carolina Code, 296. Extent of Power. That the referee has the same power as the court in this behalf, see Knapp v. Fowler, 26 Hun (N. Y.) 200; Van Ness v. Bush, 22 How. Pr. (N. Y. Supreme Ct.) 481; Bennett v. Lake, 47 N. Y. 93; Hoyt v. Hoyt, 8 Bosw. (N. Y.) 511; and upon the same terms with like effect, Ore- gon Steamship Co. v. Otis, 59 How. Pr (N. Y. Supreme Ct.) 254; Wood- ruff v. Dickie, 5 Robt. (N. Y.) 619; Smith v. Rathbun, 75 N. Y. 122. His power extends only to such amendments as the court may order on a trial. Woodruff v. Hurson, 32 Barb. (N. Y.) 557; Secor v. Law (N.Y.), 3 Trans. App. 328. His power to allow amendments is not co-extensive with that of the court at special term; it is restricted to that of the court at circuit. Chittenango Cotton Co. v. Stewart, 67 Barb. (N. Y.) 423- An answer to an amended complaint may be amended on terms pending a trial before a referee. Skinner v. White, 63 Hun (N. Y.) 628, 17 N. Y. Supp. 657. New Bill of Particulars. He may per- mit a new bill of particulars to be sub- stituted for that annexed to the com- plaint. Melvin v. Wood, 4 Abb. Pr. i Encyc. PI. & Pr. 33. 513 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. c. THE POWER CONCURRENT. The power with which the referee is thus invested is concurrent with that of the court, and pending a reference, if a party desires to amend and the referee adjourns his case, a motion may be made to the court. 1 d. NEW CAUSE OF ACTION. A referee cannot permit such an amendment of the complaint as would constitute a new cause of action. 2 e. NEW DEFENSE. Nor can he permit the defendant to amend his answer on the trial by setting up a new defense. 3 N. S. (N. Y. Ct. of App.) 438, 3 Keyes (N. Y.) 533. See Patchin v. Peck, 38 N. Y. 39. In Respect of Parties. A referee has power to amend the summons and complaint by adding a party defend- ant. Magovern v. Robertson (Su- preme Ct.), 37 N. Y. St. Rep. 441, 14 N. Y. Supp. 114. But see Newman v. Marvin, 12 Hun (N. Y.) 236; Knapp v. Hungerford, 7 Hun (N. Y.)s88. He cannot strike out the name of a party. Billings v. Baker, 6 Abb. Pr. (N. Y. Supreme Ct.) 213. Amendment Allowed in Findings. Where the plaintiff on the trial moves to amend so as to include interest in the demand, and the referee without objection reserves his decision, an al- lowance of the amendment, made in the findings, is in time. Bean -v. Edge, 46 N. Y. Super. Ct. 455. 1. Bullock v. Bemis, 40 Hun(N. Y.) 623, 2 N. Y. St. Rep. 189. May Require Application to Court. A referee is not obliged, upon the trial, to permit an amendment of the com- plaint which is necessary to make it state a cause of action against certain of the defendants; he may require the parties to apply to the court, where terms may be imposed which will pro- tect the rights of such defendants. Barnes v. Seligman, 55 Hun (N. Y.) 339, 29 N. Y. St. Rep. 68, 8 N. Y. Supp. 834- 2. National Steamship Co. v. Shea- han, 122 N. Y, 461, ajjTg 13 N. Y. St. Rep. 429; Zoller v. Kellogg, 66 Hun (N.Y.) 194, 21 N. Y. Supp. 226; Jos- lyn v. Joslyn, 9 Hun (N. Y.) 388; Dougherty v. Valloton, 38 N.Y. Super. Ct. 455; Union Bank v. Mott, 10 Abb. Pr. (N. Y. Supreme Ct.) 372; Sinclair v. Neill, i Hun (N. Y.) 80; Bockes v. Lansing, 74 N. Y. 437, ajfg 13 Hun (N. Y.) 38; Quimby v. Claflin, 13 N. Y. Wkly Dig. 203. But see Secor v. Law, 9 Bosw. (N. Y.) 163; Dunnigan v. Crummey, 44 Barb. (N. Y.) 528. A referee has power to permit an amendment of a complaint which changes the case from one for damages for breach of contract to one upon a quantam meruit. Flynn v. West- mayer, 14 Civ. Pro. (N.Y. Super. Ct.) 130, 4 N. Y. Supp. 188. Or which changes an allegation that an assignment was in writing and for a certain sum, so as to allege that it was by parol and as security for a certain sum. Hoyt z/. Hoyt, 8 Bosw. (N. Y.) 511. For other amendments held not to introduce a new cause of action, see Bennett v. Agricultural Ins. Co., 106 N. Y. 243; Snow v. Cable, 19 Hun (N. Y.) 280. 3. Case v. Phoenix Bridge Co., 34 N. Y. St. Rep. 581, 19 Civ. Pro. Rep. (N. Y. Super. Ct.) 373, n N. Y. Supp. 723; Woodruff v. Hurson, 32 Barb. (N. Y.) 557 ; Dougherty v. Valloton, 38 N. Y. Super. Ct. 455. See also Smith v. Bodine, 74 N. Y. 30; Brett v. First Universalist Soc., 63 Barb. (N. Y.) 610, afd 64 N. Y. 651; Livermore v. Bainbridge, 44 How. Pr. (N. Y. Supreme Ct.) 357, ajfd 47 How. Pr. (N.Y.) 350. Payment Amended to General Denial. The referee may allow an amendment of the answer which contained an aver- ment of payment to plaintiff's agent, by setting up a general denial. Wilcox v. Onondaga County Sav. Bank, 40 Hun (N. Y.)297. Making General Denial Special. Or to set up by amendment of an answer which was a general denial, that one of the defendants sued as a partner was not a partner, and' that the claim sued on has been paid in part. Frazer v. Hunt, 18 N. Y. Wkly Dig. 390. Reply to Counterclaim After the final submission of the cause and a de- cision by the referee the plaintiff will not be permitted to amend his reply to a counterclaim by setting up a further defense thereto. Brady v. Nally, 26 Of Pleadings, etc , at AMENDMENTS. Common Law, under Codes, etc. /. To CONFORM TO PROOF. Referees have power after a cause of action has been duly made out by the proofs to direct an amendment of the pleadings so as to make them conform thereto. 1 g. POWER TO IMPOSE TERMS. The power of a referee with respect to the terms upon which an amendment shall be allowed is commensurate with that of the court. 2 //. REVIEW OF REFEREE'S RULING. The allowance or rejec- tion of amendments rests in the sound discretion of the referee, and his decision will not be reviewed except for want of power, or in a clear case of abuse. 3 3. In Furtherance of Justice a, PRINCIPLE PERVADES ALL AMENDMENTS. In civil proceedings all amendments, if no stat- ute or rule of court interposes to prevent, are in the discretion of the court, and are allowed or refused as the court may deem most conducive to the furtherance of justice. 4 Abb. N. Cas. (N. Y. Super. Ct.) 367, raising the objection. Grattan v. Met- 14 N. Y. Supp. 480. Setting up Limitation. A referee can- not allow a party on the trial to add the plea of the statute of limitations; it is a new defense. Riley v. Corwin, 17 Hun. (N. Y.) 597. Contra, Mason v. Johnson, 13 S. Car. 20. 1. Hough v. Blower, i Alb. L. J. 124; Chapin v. Dobson, 78 N. Y. 74; Oregon Steamship Co. v. Otis, 59 How. Pr. (N. Y. Supreme Ct.) 254, 27 Hun (N. Y.) 452, 100 N. Y. 448; Flynn v. Westmayer (Super. Ct.), 4 N. Y. Supp. 188; Nichols v. Scranton Steel Co. (Ct. of App.), 51 N. Y. St. Rep. 277, 137 N. Y. 471, aff'g 46 N. Y. St. Rep. 58; Merriam v. Wolcott, 61 How. Pr. (N. Y. Supreme Ct.) 377; Crismon v. Deck, 84 Iowa 344; Gilbank v. Stephenson, 31 Wis. 592; South Car. R. Co. v. Barrett, 12 S. Car. 174. ropolitan L. Ins. Co., So N. Y. 281. 3. Haight v. Littlefield, 71 Hun (N. Y.) 289; Coates v. Donnell, 48 N. Y. Super. Ct. 46; Price v. Brown, 98 N. Y. 388; Melvin v. Wood, 3 Keyes (N. Y.) 533; Woodruff v. Hurson, 32 Barb. (N. Y.) 557; Rocker v. Wildfoerster (Supreme Ct.), 20 N. Y. Supp. 9. See also Brett v. First Universalist Soc., 63 Barb. (N. Y.) 610, a/d 64 N. Y. 651. Grounds for Ruling. Doubtless, if a referee denies leave to amend on the ground of a supposed want of power, his decision is reviewable for error. See infra IV. a, (2). But if the order denying leave states no ground for his decision, it will be presumed that it was simply an exercise of discretion. Haight v. Littlefield, 71 Hun (N. Y.) 289. Method of Review. In New York the special term has no power to review It can be Knapp v. Fowler, 26 Hun (N. Y.) 200. See Macpherson v. Ronner, 40 N. Y. Super. Ct. 448. 4. Jackson v. Warren, 32 111. 331; Thompson v. Mosely, 29 Mo. 477; Failure of Proof. In Button Schuyler's Steam Towboat Line, 40 the ruling of the referee. Hun (N. Y.) 422, an amendment was reviewed only on appeal, properly denied on account of failure of proof. 2. Smith v. Rathbun, 75 N. Y. 122, reversing 13 Hun (N. Y.) 47, and hold- ing that where the referee allows the plaintiff to amend by adding allega- tions which do not substantially change the cause of action, he may impose as a condition that a defendant who has answered may interpose a de- murrer or answer. Waiver of Objection. A referee may allow an amendment 6f the complaint upon the trial on payment of costs; at all events the opposite party by ac- cepting the costs is precluded from Chouteau v. Hewitt, 10 Mo. 131; God- dard v. Williamson, 72 Mo. 131; Greer v. Covington (Ky., 1885), 2 S. W. Rep. 323; Bussey v. Rothschild, 27 La. Ann. 316; Penny v. Parham, i La. Ann. 274; McMullen v. Jewell, 3 La. Ann. 139; Meyer v. Farmer, 36 La. Ann. 785; Tucker v. Liles, 3 La. 297; Debuys v. Mollers, 2 Martin N. S. (La.) 625; Brockman v. Berryhill, 16 Iowa 183; Wilson v. Johnson, i Greene (Iowa) Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Amendments are not ordinarily allowed in order to give one of the parties a purely technical advantage over the other. 1 Obvi- ously, however, the term " furtherance of justice " is not suscep- tible of accurate definition, and the application of the principle is to be determined by the varying circumstances of each particular case, for which reference must be had to specific heads of this article. 2 A few general considerations touching the subject are discussed in the following subsections. b. AMENDMENTS FAVORED. Although the granting or refusal of leave to amend rests within the sound discretion of the court, 3 147; Daguerre v. Orser, 3 Abb. Pr. (N. Y. C. PI.) 88; Harrington v. Slade, 22 Barb. (N. Y.) 161; Wampler v. Shiss- ler, i W. & S. (Pa.) 365; State v. Van- dever, 3 Harr. (Del.) 29; State v. Col- lins, i Harr. (Del.) 216; Townsend v. Townsend, 2 Harr. (Del.) 277; Hen- dricksen v. Huey, 2 Harr. (Del.) 301; Ten Eyck v. Delaware, etc., Canal Co., 19 N. J. L. 5; Bartley v. Smith, 43 N. J. L. 321; Archibald v. Thompson, 2 Colo. 391; Fuller v. Wing, 19 Me. 222. Extraordinary Liberality in California. In Bradley v. Parker (Cal., 1893), 34 Pac. Rep. 236, it was said that the courts of California "have gone fur- ther, perhaps, in permitting amend- ments than those of any other juris- diction in the Union." Good Faith Recognized. As a general rule courts will not refuse a party leave to amend a pleading so long as they are satisfied that he is in good faith attempting to remedy such de- fects as are made to appear by the rulings upon questions presented in the course of settling the pleadings. Balch v. Smith, 4 Wash. St. 504. Oversights of Counsel. "From over- sights of counsel committed under pressure of business, pleadings are often defective. In such cases, when an offer to amend is made at such a stage in the proceedings that the other party will not lose an opportunity to fairly present his whole case, amend- ments should be allowed with great liberality." Kirstein v. Madden, 38 Cal. 158. See also Penny v. Van Cleef, i Hall (N. Y.) 165. Mistake of Law. The court may allow an answer to be amended so as to correct a mistake of law made by the defendant's attorney. Gould v. Stafford, 101 Cal. 32. Third Parties Protected. A mistake in the name of a party cannot be cor- rected by amendment where the rights of third parties will be prejudiced. Fullerton v. Campbell, 25 Pa. St. 345. Diligence Rewarded. The court will not refuse to allow an amendment of the pleadings in an action to set aside as fraudulent a general assignment be- cause the effect of allowing such an. amendment may be to enable one dili- gent creditor to collect his claims be- fore the claims of other creditors. Smith v. Parkhurst (Supreme Ct.), z- N. Y. St. Rep. 212. Inconsistent Defenses. An amend- ment of the answer by setting up sev- eral inconsistent defenses should not be allowed. Marx v. Gross, 58 N. Y. Super. Ct. 221. Pleading Judgment in Bar. Where judgment is directed on demurrer of one of two joint debtors and the ac- tion served and directed to proceed as to the other, it is not in furtherance of justice to allow an amendment of the answer of the remaining defendant by setting up the judgment in bar.. Schmohl v. Fusco (City Ct.), 37 N. Y. St. Rep. 687. Withdrawal of Pleading. A party may in the discretion of the court be allowed to withdraw any pleading filed by him where it works no injury to his adversary. Humphrey v. Hughes, 79 Ky. 487. 1. Hexter v. Schneider, 14 Oregon 184, affirming the ruling of the lower court in refusing to allow an amend- ment by pleading in abatement during the progress of the trial. 2. The leading features in modern practice are that amendments are al- lowed with great liberality (see the following paragraph), that their allow- ance or refusal is discretionary with the court (infra, 4, a, i), and that the exercise of such discretion will not be reviewed except in a clear case ol abuse (infra, 4, a, i). 3. See infra, 4, a, I. 5 l6 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes., etc. a multitude of authorities declare the salutary rule that statutes of amendment are remedial and must be construed and applied liberally in favor of the privilege of amending. Upon this propo- sition there are no dissenting authorities. 1 1. Missouri. Reyburn v. Mitchell, 106 Mo. 365; Chauvin v. Lownes, 23 Mo. 223; Clarkson v. Morrison, 24 Mo. 134; Caldwell v. McKee, 8 Mo. 334; Dallam v. Bowman, 16 Mo. 225; House v. Duncan, 50 Mo. 453. Iowa. Logan v. Tibbott, 4 Greene (Iowa) 389; Tiffany v. Henderson, 57 Iowa 490, where it was said that "to allow amendments is the rule; to refuse, the exception;" Miller v. Perry, 38 Iowa 301; O'Connell v. Cot- ter, 44 Iowa 50; Hays v. Turner, 23 Iowa 217; Pride v. Wormwood, 27 Iowa 257; Seevers v. Hamilton, n Iowa 66. Massachusetts. Davenport v. Hol- land, 2 Cush. (Mass.) 12; Barker v. Burgess, 3 Met. (Mass.) 273; Goddard u. Pratt, 16 Pick. (Mass.) 412. California. Link v. Jarvis (Cal., 1893), 33 Pac. Rep. 206; Pierson v. McCahill, 22 Cal. 127 ; Burns v. Scooffy, 98 Cal. 271; Smith v. Yreka Water Co., 14 Cal. 201; Ward v. Clay, 82 Cal. 502; Lestrade v. Barth, 17 Cal. 285, affirming the decision of the trial court in granting a new trial for its own erroneous exercise of discretion in denying defendant leave to amend; Cooke v. Spears, 2 Cal. 409; Butler v. King, 10 Cal. 342 ; Kirstein v. Madden, 38 Cal. 158 ; McMillan v. Dana, 18 Cal. 339; Linhart v. Buiff, II Cal. 280. New York. Campbell v. Campbell, 23 Abb. N. Cas. (N. Y. Supreme Ct.) 187; Strong v. Dwight, n Abb. Pr. N. S. (N. Y. Supreme Ct.) 319; Reeder v. Sayre, 70 N. Y. 180; Bragg v. Bick- ford, 4 How. Pr. (N. Y. Supreme Ct.) 21 ; Gilchrist v. Gilchrist, 44 How. 4 Pr. (N. Y. Supreme Ct.) 317; Harrington v. Slade, 22 Barb. (N. Y.) 161; Rich- mond v. Second Avenue R. Co. (Super. Ct.), 29 N. Y. Supp. 588. Tennessee. Stovall v. Bowers, IO Humph. (Tenn.) 560. Nebraska. Berrer v. Moorhead, 22 Neb. 687. Alabama. Watts z'.Womack, 44 Ala. 605; Beavers v. Hardie, 59 Ala. 570, Nelson v. Webb, 54 Ala. 436; Board- man v. Parrish, 56 Ala. 54; Webster v. Wyser, i Stew. (Ala.) 184, holding that a plea puis darrein continuance may be amended; Sanders v. Knox, 57 Ala. 80; Robinson v. Darden, 50 Ala. 71. North Carolina. Alamance County v. Blair, 76 N. Car. 136; Deal v. Palm- er, 68 N. Car. 215; Robinson v. Wil- loughby, 67 N. Car. 84; Kron z/. Smith, 96 N. Car. 389. Pennsylvania. Trego v. Lewis, 58 Pa. St. 463; Miller v. Pollock, 99 Pa. St. 202; Patton v. Pittsburgh, etc., R. Co., 96 Pa. St. 169; Fidler v. Hershey, 90 Pa. St. 363; Getty v. Shearer, 20 Pa. St. 12; Tiernan -v. Blackstone, i Phila. (Pa.) 27; Beates v. Rotallick, 23 Pa. St. 290; Steffy v. Carpenter, 37 Pa. St. 41. Wisconsin. Gregory v. Hart, 7 Wis. 532; Treadway v. Wilder, 8 Wis. 91; Brown v. Bosworth, 62 Wis. 542. Oregon. Baldock v. Atwood, 21 Oregon 79; Swift v. Mulkey, 14 Oregon 59- Connecticut. Bennett v. Collins, 52 Conn, i; Phelps v. Enz, 19 Conn. 58. New Hampshire. Stebbins v. Lan- cashire Ins. Co., 59 N. H. 149. Michigan. Beecher v. Wayne Cir- cuit Judges, 70 Mich. 363; Snyder v. Winsor, 44 Mich. 140. Ohio. Milins v. Marsh, I Disney (Ohio), 512; Beresford v. Ward, i Disney (Ohio), 171; Loving v. Fair- child (District of Ohio), I McLean (U. S.) 333- South Carolina. Tarrant v. Gittel- son, 16 S. Car. 234; State Bank v. Simpson, 2 Spears (S. Car.) 41; Hester v. Hagood, 3 Hill (S. Car.) 195. Illinois. Thompson v. Sornberger, 78 111. 353; Drake v. Drake, 83 111. 526. Kansas. Harper v. Hendricks, 49 Kan. 724; School Dist. No. 2 v. Boyer, 46 Kan. 54; Gulp v. Steere, 47 Kan. 746. Georgia. Woodson v. Law, 7 Ga. 105. Mississippi. Cooper T. Granberry, 33 Miss. 117; Bloom v. Price, 44 Miss. 73- Texas. Reed v. Harris, 37 Tex. 167. Louisiana. Jelks v. Smith, 5 La. Ann. 674; Carter v. Farrell, 39 La. Ann. 102. Colorado. Lebanon Min. Co. v. Con- solidated, etc., Min. Co., 6 Colo. 371. Maine. Solon v. Perry, 54 Me. 493. Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. c. THE DEFENDANT FAVORED. Courts have expressly de- clared that greater liberality will be exercised in allowing a de- fendant to amend his answer than in permitting the plaintiff to amend his complaint, 1 especially when the defendant will neces- sarily lose all benefit of the defense unless it be allowed in the pending suit. 2 Municipal Corporations. And more indulgence will be granted in this behalf to a municipal corporation defendant than to indi- viduals. 3 d. AMENDMENTS BARRED BY LIMITATION. Where a pro- posed amendment consists of new matter relating to the subject of the action as set forth in the complaint, and is not a new and Liberal Construction of Statutes. The Connecticut Practice Act provides for amendments on appeals from justices of the peace, during the first term of the appellate court, by the introduction of equitable causes of action or de- fenses. This was construed to give the court a discretionary power to allow such amendments after the lapse of the first term, the right to amend being absolute during the first term. Bennett v. Collins, 52 Conn. I. And where the statute allowed the names of partners to be inserted dur- ing the first three days of the term, it was held that the court had a dis- cretion to allow the amendment at a later stage of the case. Phelps v. Enz, 19 Conn. 58. The Massachusetts statute of 1833, c. 144, provided that "at any time before issue joined on a plea of non- joinder of a party defendant in an ac- tion founded on debt or contract, the plaintiff may on motion be allowed to amend his writ and declaration by in- serting therein the name of any other person as defendant"; and it was held that such amendment might be made although no plea of nonjoinder had been filed. Goddard v. Pratt, 16 Pick. (Mass.) 412. In Pennsylvania, although by the strict construction of the Act of 1806 it might be held to apply only to amendments of declarations or pleas, the court, looking to the spirit and in- tention of the act, held that it applied to subsequent pleadings in the cause, and allowed an amendment of a repli- cation. Tiernan v. Blackstone.i Phila. (Pa.) 27. 1. Garrison v. Goodale, 23 Oregon 307; Thorn v. Smith, 71 Wis. 24; Brown v. Bosworth, 62 Wis. 542^ Garvin v. Dawson, 13 S. & R. (Pa.) 246, 248. See also Nys v. Biemeret, 44 Wis. 104. The Reason, as stated in the case first cited, is that the plaintiff may suffer a nonsuit and commence another suit, whereas if the defendant were denied the privilege, he might be without remedy. " The practice is undoubtedly more liberal in allowing a change of plea after a demurrer overruled than in al- lowing amendments to declarations which have been held to be insuf- ficient." McAlister v. Clark, 33 Conn. 253- In Williams v. Cooper, i Hill (N. Y.) 637, a defendant in an action of sland- er pleaded the general issue, under the impression that he had no evidence in justification, but afterwards discover- ing such evidence, he obtained leave to amend by adding a plea of justifica- tion. In Peters v. Foss, 16 Cal. 357, the trial court granted a new trial for its own abuse of discretion in refusing defendant leave to amend his answer, and the appellate court affirmed the decision. See also for other cases where a liberal discretion was exercised in favor of a defendant. Young v. Gay, 41 La. Ann. 758; Wright v. Williams, 5 Cow. (N. Y.) 501; Bowman v. De Peyster, 2 Daly (N. Y.) 203; Cayce v. Ragsdale, 17 Mo. 32. 2. Thorn v. Smith, 71 Wis. 18; Gar- rison v. Goodale, 23 Oregon 307. 3. Seaver v. New York, 7 Hun (N. Y.) 331. See also Capron v. Adams County, 43 Wis. 613; Wisconsin Cent. R. Co. v. Lincoln County, 57 Wis. 137- Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. independent cause of action, 1 the fact that the statute of limi- tations has attached to it pending the suit is a strong reason for allowing the amendment instead of refusing it. 2 e. FURTHER AMENDMENTS. Where a party finds, after amend- ing his pleading, that it is still insufficient for his purpose, it is not an abuse of discretion to permit further amendments ; 3 but as an application under such circumstances savors of laches, it is often denied. 4 /. AMENDMENT OF PLEA IN ABATEMENT. It is not deemed to be in furtherance of justice to allow a plea in abatement to be amended. 5 Where matters in abatement were pleaded at the 1. The introduction of an entirely new cause of action by amendment after it has become barred by the statute of limitations is not usually deemed to be in furtherance of justice. Stevens v. Brooks, 23 Wis. 196; Drake v. Watson, 4 Day (Conn.) 37. See also Eggleston v. Beach, 19 Civ. Pro. Rep. (N. Y. Supreme Ct.) 288. 2. Sanger v. Newton, 134 Mass. 308; Davis v. Saunders, 7 Mass. 62, a qui tarn action; People v. Cook, 62 Hun (N. Y.) 304; Elting v. Dayton, 67 Hun (N. Y.) 425, 22 N. Y. Supp. 154, where this consideration in favor of the amendment prevailed although the plaintiff was not free from laches; Risley v. Phoenix Bank, 2 Hun (N. Y.) 349; Wilson v. Smith (Super. Ct.), 39 N. Y. St. Rep. 156; Miller v. Wat- son, 6 Wend. (N. Y.) 506; Dana v. McClure, 39 Vt. 197; Lottman v. Bar- nett, 62 Mo. 159; Wood v. Lane, 84 Mich. 521; Shieffelin v. Whipple, 10 Wis. Si, where the trial court was re- versed for refusing to allow the amend- ment on the trial; Tucker v. Virginia City, 4 Nev. 20; Kansas Pac. R. Co. v. Runkel, 17 Kan. 145; Verdery v. Barrett, 89 Ga. 349; Rand v. Webber, 64 Me. 191; Dana v. McClure, 39 Vt. 197. Counterclaim Barred by Limitation. If a proposed amendment of an an- swer by setting up a counterclaim shows that the latter is barred by the statute of limitations, it should never- theless be allowed, for the plaintiff may not choose to plead the statute. Dudley v. Stiles, 32 Wis. 371. 3. Cleveland v. Cohrs, 13 S. Car. 397; Detroit Third Nat. Bank v. Reilly, 81 Mich. 438; Riverside Land, etc., Co. v. Jensen, 73 Cal. 550; Wilbur v. Abbot, 6 Fed. Rep. 817, where a refusal would have cut off a part of the plaintiff's remedy. See also Frank- lin v. Mackey, 16 S. & R. (Pa.) 117; Perry v. Herbert, 8 Tex. I. 4. Nethercott v. Kelly (Super. Ct.), 5 N. Y. Supp. 259; Bitzer v. Campbell, 47 Minn. 221; Bean v. Moore, 2 Chand. (Wis.) 44; Jenn v. Spencer, 32 Tex. 657; Trammell v. Swan, 25 Tex. 473; Fogarty v. Harrigan, 28 Wis. 142. In Billings v. Sanderson, 8 Mont. 201, the defendant, having previously filed two amended answers, was denied leave to amend again. In Sanders v. Wakefield, 41 Kan. ii, he was denied leave to amend a fourth time. In Balch v. Smith, 4 Wash. 497, the court refused to allow plaintiff to amend a third time. 5. Trinder v. Durant, 5 Wend. (N. Y.) 72; Brown z/. Nourse, 55 Me. 230; Getchell v. Boyd, 44 Me. 482; Esdaile v. Lund, 12 M. & W. 606, where Parke, B., said that in case of a dilatory plea " the court cannot show it any favor, and will not give the defendant leave to amend." See also Hexter v. Schneider, 14 Oregon 184; Davis v. Campbell, 35 Tex. 779; Eschbach v. Bayley, 28 Md. 492; Livengood v. Shaw, 10 Mo. 273. Whether a defective jurat to a plea in abatement can be amended, qutzre. Jones v. Eaton, 51 Me. 386. Allowance Discretionary. It was held in Helm v. Rodgers, 5 Humph. (Tenn.) 105, that the allowance of an amend- ment of a plea in abatement in matter of form does not exceed the power of the court, and is therefore not a sub- ject of error. Where Not a Plea in Abatement. A plea showing that a defendant has been sued out of the county on process sent to his county is not a plea in abatement, but a meritorious one to secure a substantial right, and if de- fective in form is amendable. Safford 519 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. same time with a defense in bar, leave to amend as to the matters in abatement was denied. 1 g. UNCONSCIONABLE DEFENSES USURY AND LIMITATION. Formerly the rule was rigorously enforced that a plea setting up what was denominated an unconscionable defense, such as usury or the statute of limitations, would not be allowed as a matter of favor by way of amendment after the period of pleading it as a matter of right had elapsed. 2 But this doctrine has been wholly abandoned in some of the courts where it was once upheld, 3 and v. Sangamo Ins. Co., 88 111. 296, prac- tically identical with Drake v. Drake, 83 111. 526. 1. Oregon Cent. R. Co. v. Scoggin, 3 Oregon 161. 2. Usury. Beach v. Fulton Bank, 3 Wend. (N. Y.) 573; Lovett v. Cowman, 6 Hill (N. Y.) 223; Utica Ins. Co. v. Scott, 6 Cow. (N. Y.) 606; Bates v. Voorhies, 7 How. Pr. (N. Y. Supreme Ct.) 234. See also Smalley v. Doughty, 6 Bosw. (N. Y.) 66. But a plea of usury may be amended. Makepeace v. Boyd, 2 Mass. 430. Statute of Limitations. Coit v. Skin- ner, 7 Cow. (N. Y.) 401; Hallagan v. Golden, i Wend. (N. Y.) 302; Jackson v. Varick, 2 Wend. (N. Y.) 294: Lovett v. Cowman, 6 Hill(N. Y.) 223; Wolcott v. McFarlan, 6 Hill (N. Y.) 227; Sag- ory v. New York, etc., R. Co., 21 How. Pr. (N. Y. Supreme Ct.) 455; Osgood v. Whittelsey, 20 How. Pr. (N. Y. Supreme Ct.) 72; Clinton v. Eddy, 37 How. Pr. (N. Y. Supreme Ct.) 23; McQueen v. Babcock, 22 How. Pr. (N. Y. Supreme Ct.) 229, 3 Keyes (N. Y.)428, holding, however, that it may be set up in an amendment which is filed as of course; Sheets v. Bald- win, 12 Ohio 120; Burton v. Waples, 3 Harr. (Del.) 75; Waples v. McGee, 2 Harr. (Del.) 444. See also Stuart v. Lander, 16 Cal. 372; Cooke v. Spears, 2 Cal. 409; Plumer v. Clarke, 59 Wis. 646. In Marx v. Hilsendegen, 46 Mich. 336, a refusal to allow the defendant to interpose the statute of limitations on the trial was sustained, the court declaring that a contrary course would have been gross injustice. After Amendment of Declaration. But if the plaintiff amends his declaration, the defendant may plead the statute of limitations. State v. Green, 4 Gill & J. (Md.) 381; Harriott v. Wells, 9 Bosw. (N. Y.) 631. Where Defendant was Misled. Where the plaintiff declared in slander for words spoken within the period of the statute of limitations, but produced evidence of words spoken on a more remote date and barred by the statute, it was held reversible error not to allow the defendant to file a plea of the statute. Brickett z/. Davis, 21 Pick. (Mass.) 404. Amendment of Plea of Statute. In Wall v. Wall, 2 Har. & G. (Md.) 79, it was declared to be the universal prac- tice not to allow a plea of the statute of limitations to be amended. And leave was denied in Lamott v. Mc- Laughlin, 3 Har. & M. (Md.) 324; Griffin v. Moore, 43 Md. 246. See also Kunkel v. Spooner, 9 Md. 473; Nelson v. Bond, i Gill (Md.) 218. 3. In New York it is now settled, contrary to the earlier decisions cited in the preceding note, that in respect of the allowance of amendments all legal defenses stand upon an equal footing, and no discrimination will be made against those formerly denomi- nated unconscionable, such as usury and the statute of limitations. Amendments setting up usury were allowed in Grant v. McCaughin, 4 How. Pr. (N. Y. Supreme Ct.) 216; Browne. Mitchell, 12 How. Pr. (N. Y. Supreme Ct.) 408; Barnett v, Meyer, 10 Hun (N. Y.) 109; Catlin v. Gunter, IT N. Y. 368. See also Bank of Kinderhook v. Gifford, 40 Barb. (N. Y.) 659; Union Nat. Bank v. Bassett, 3 Abb. Pr. N. S.(N.Y. Supreme Ct.) 359. Amendments setting up the statute of limitations were allowed in Shel- don v. Adams, 41 Barb. (N. Y.) 54; Gilchrist v. Gilchrist, 44 How. Pr. (N. Y. Supreme Ct.) 317; Cunliff v. Dela- ware, etc., Canal Co. (Supreme Ct.), 4 N. Y. St. Rep. 775. Compare In re Bear (District of New York), 8 Fed. Rep. 428, where the court appears not to have been advised of the change in the New York decisions. 520 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. at least ameliorated in other jurisdictions. 1 1. South Carolina. In Mason v. John- son, 13 S. Car. 20, the court referred with approval to the rule now estab- lished in New York, and held that the allowance of an amendment on the 'trial setting up the statute of limita- tions is proper. In Garlington v. Copeland, 32 S. Car. 57, it was held not to be an abuse of discretion for the court to refuse to permit an amendment of the answer by pleading the statute of limitations after the case had been heard at length on the merits. In Seegers v. McCreery (S. Car., 1894), 19 S. E. Rep. 686, the trial court refused to allow a motion to amend the answer by adding the defense of the statute of limitations after the plain- tiff's evidence had been closed, and the Supreme Court held that it was a matter of discretion which was prop- erly exercised. Wisconsin. In Smith v. Dragert, 61 Wis. 222, the trial court refused to al- low the defendant to amend by setting up the statute of limitations, reciting in its order that the refusal was based upon a supposed want of power. The appellate court decided that this was error, and remanded the cause with directions to the court below to exer- cise its discretion as it should see fit. The doctrine in Wisconsin was there summarized as follows: " The allow- ance or disallowance of an amend- ment to a pleading setting up a statute of limitations or a plea of usury rests in the sound discretion of the trial court, under all the circumstances of the case. In accordance with that prin- ciple the court has frequently sustained orders of the trial court refusing to grant such amendment. Fogarty v. Horrigan, 2 Wis. 142; Eldred v. Ocon- to Co., 30 Wis. 206; Meade v. Lane, 32 Wis. 261; Dehuel v. Komrow, 37 Wis. 336; Plumer v. Clarke, 59 Wis. 646. It has also sanctioned the right of the trial court in the exercise of such discretion to grant such amendment. Newman v. Kershaw, 10 Wis. 340 ; Jones v. Walker, 22 Wis. 220; Orton v. Noonan, 25 Wis. 676; Baker v. Colum- bia County, 39 Wis. 444; Wisconsin Cent. R. Co. v. Lincoln County, 57 Wis. 137. See also Morgan -v. Bishop, 61 Wis. 407. Where a county is defendant it is reversible error to refuse to allow an amendment of its answer by setting up the statute of limitations. Capron v. Adams County, 43 Wis. 613. See also Wisconsin Cent. R. Co. -v. Lincoln County, 57 Wis. 137; Baker v. Colum- bia County, 39 Wis. 444. In Dole v. Northorp, 19 Wis. 249, it was held that an amendment should not be allowed by setting up the defense of usury to defeat a recovery of the principal and legal interest, if under the original answer the court can do equity between the parties by render- ing judgment for the principal and legal interest, less the amount paid as usurious interest. California. In Cooker. Spears, 2 Cal. 409, a refusal to allow an amendment setting up the statute of limitations was held not an abuse of discretion, but the court said that it should be allowed at any time when justice would be promoted thereby. Iowa. In McNider v. Sirrine, 84 Iowa 58, it was held that the statute of limitations cannot be set up by amend- ment to an answer after judgment, unless made to conform to the proof; if not so made it would be changing the defense, which is not permitted at that stage. In Phcenix Ins. Co. v. Dankwardt, 47 Iowa 432, it was held that the al- lowance of an amendment to the an- swer by setting up the statute of lim- itations would not be reviewed except for an abuse of discretion. Other States. In Burton v. Rodney, I Houst. (Del.) 442, it was held that, upon a general leave to amend with- out qualification after the cause was at issue, the court would not on motion strike out a plea of the statute of limitations filed under the leave. In People v. Barton (Colo. App., 1894), 36 Pac. Rep. 299, it was held re- versible error to allow a defendant without any showing by affidavit to amend a demurrer to the complaint by adding an additional ground of demurrer based on the statute of lim- itations. After a case has gone to the supreme court on a plea of res adjudicate the lower court may properly refuse to al- low the defendant to plead the stat- ute of limitations. Donnelly v. Pep- per, 91 Ky. 363. In Mitchell v. Gotten, 3 Fla. 134, the defendant was allowed to amend be- 521 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Infancy is not an unconscionable defense, and may be set up by- amendment. 1 h. LACHES OF APPLICANT. A party who has notice of a defect in his pleadings should move to amend without unreasonable delay, otherwise the court will be justified in denying him leave to amend on the ground of laches. 3 When a party has procrastinated until an advanced stage of the proceedings, and the amendment will produce much incon- venience or delay, his application is regarded with extreme dis- favor. 3 Kansas. Butcher v. Brownsville Bank, 2 Kan. 70; Baughman v. Hale, 45 Kan. 453; Kansas, etc., Fire Ins. Co. v. Amick (Kan.), 20 Pac. Rep. 518. Other States. Kelly v. Kershaw, 5 Utah, 295; Johnson v. Swayze, 35 Neb. 117; Billings v. Sanderson, 8 Mont. 201; Penny v. Parham, I La. Ann. 274. Knowledge of the defendant is knowledge of his counsel. Heyler v. New York News Pub. Co. (Supreme Ct.), 24 N. Y. Supp. 499. In Archer v. Merchants', etc., Ins. Co., 43 Mo. 434, the court said that despite the laches of the applicant it will generally conduce to substantial justice to allow the amendment upon adequate terms. See also Pomeroy v. Brown, 19 Mo. 302. 3. Dorster v. Arnold, 8 Ga. 209; Sharpe v. Dillman, 77 Ind. 281, where the application was made after trial and while the court was announcing his finding; Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123; John- son v. American Writing Mach. Co. (Super. Ct.), 4 N. Y. Supp. 391; Brusie v. Peck (Supreme Ct.), 6 N. Y. St. Rep. 709; Saltus v. Genin, 3 Bosw. (N. Y.) 639, where the plaintiff, who was apprised of the necessity of amendment on the trial, waited more than two years thereafter, and nearly a year after a decision against him on appeal; Emeric v. Alvarado, 90 Cal. 484; Hancock v. Hubbell, 71 Cal. 537; Page v. Williams, 54 Cal. 562, where defendant pleaded payment, and more than two years after issue joined moved to amend by alleging want of consideration; Fisher v. Greene, 95 111. 94, where the defendant's applica- tion came nearly two years after the issues were made up; Dow v. Blake, 148 111. 76, an application to file ad- ditional pleas seventeen months after issue joined and only three days be- fore trial; Gotten v. Fidelity Casualty fore trial by setting up the statute of limitations. Williams v. Little, n N. H. 576, shows that the rule in New Hamp- shire is the same as that now estab- lished in New York. See the preced- ing note. In Clark v. Thomas, 4 Heisk (Tenn. ) 419, the refusal to allow a plea of the statute of limitations to be filed after the trial had commenced, upon affidavit accounting for the failure to file the plea earlier, but not verifying the plea, was held not to be an abuse of dis- cretion. 1. Rogers v. Wright, 21 Wis. 681. 2. California. Emeric v. Alvarado, 90 Cal. 484. New York. Eggleston v. Beach (Supreme Ct.), 33 N. Y. St. Rep. 835; Cocks v. Radford, 13 Abb. Pr. (N. Y. Supreme Ct.) 267; Johnson r/.American Writing Mach. Co. (Super. Ct.), 4 N. Y. Supp. 391; Hurlbut v. Interior Conduit, etc., Co. (Super. Ct.), 28 N. Y. Supp. 1007; Archer v. Douglass, i How. Pr. (N. Y.)93; Johnson v. At- lantic Ave. R. Co. (Supreme Ct.), 27 N. Y. Supp. 584; Sackett v. Thompson, 2 Johns. (N. Y.) 206; McLean v. St. Paul, etc., Ry. Co., 18 Abb. N. Cas. (N. Y. C. Pl.)423; Eggleston v. Beach, 19 Civ. Pro. Rep. (N. Y. Supreme Ct.) 288; Wooster v. Bateman (Super. Ct.), 25 N. Y. Supp. 806 ; Sleeman v. Hotchkiss (Supreme Ct.), 36 N. Y. St. Rep. 540; Sheldon v. Adams, 41 Barb. (N. Y.) 54; Butler v. Farley (Supreme Ct.), 17 N. Y. St. Rep. 109. Pennsylvania. Perdue v. Taylor, 146 Pa. St. 163; Gardiner v. Wilson, 2 Yeates (Pa.) 186; Bricker v. Dull, 82 Pa. St. 328; Campbell v. Gratz, 6 Binn. (Pa.) 114. Kentitcky. Cavanaugh v. Britt, 90 Ky. 273; Mudd v. Mudd (Ky., 1890), 148. W. Rep. 355; Persifull v. Boreing (Ky., 1893), 22 S. W. Rep. 440; Newton v. Terry (Ky., 1892), 22 S. W. Rep. 159. Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Where the Facts Were Known. It is not an abuse of discretion to reject an amendment tendering a new issue after the pleadings have been made up, or upon the trial, where it appears that the facts contained in the amendment were known to the party when he filed the original pleading. 1 /. IMMATERIAL, UNNECESSARY, OR UNAVAILING AMEND- MENTS. The court may properly refuse to allow an amendment which is immaterial, 2 unnecessary, 3 or indefinite, 4 or which will not accomplish the purpose for which it is intended. 5 Thus, it Co., 41 Fed. Rep. 506, an application to amend a plea on the trial after the evidence was closed; Baughman v. Hale, 45 Kan. 453, an application by plaintiff on the trial to amend so as to change the issues; Buno v. Gomer, 3 Colo. App. 456, where the plaintiff, after a report of a referee, proposed to strike out certain admissions in his complaint, the court declaring that ap- plication should have been made the instant the error was discovered; Bit- terling v. Deshler, 160 Pa. St. i, an ap- plication to amend by changing the form of action six years after judg- ment of nonsuit. 1. Cavanaugh v. Britt, 90 Ky. 273, where the plaintiff sought to amend. In the following cases amendments to answers were refused on the ground stated. Gotten v. Fidelity Casualty Co., 41 Fed. Rep. 506; Cocks v. Rad- ford, 13 Abb. Pr. (N. Y. Supreme Ct.) 207; Johnson v. Atlantic Ave. R. Co. (Supreme Ct.), 27 N. Y. Supp. 587; Smith v. Equitable Mortg. Co. (Su- preme Ct.), 26 N. Y. Supp. 180; New- man v. Springfield F. & M. Ins. Co., 17 Minn. 123 ; Phenix Ins. Co. v. Stocks, 149 111. 319; Newton v. Terry (Ky., 1892), 22 S. W. Rep. 159; Lucas Market Sav. Bank v. Goldsoll, 8 Mo. App. 596; Levvin v. Houston, 8 Tex. 94; Buddee v. Spangler, 12 Colo. 216; Holladay v. Elliott, 3 Oregon 340; Sayers v. First Nat. Bank, 89 Ind. 230. Contra. In California the fact that new matter set up by amendment of an answer was well known to the de- fendant when he filed his original an- swer is no good reason for denying him leave to amend. Pierson v. McCahill, 22 Cal. 127; Farmers' Nat. Gold Bank v. Stover, 60 Cal. 387; Sharon v. Sharon, 77 Cal. 102. 2. Levinson v. Schwartz, 22 Cal. 229, where the proposed amendment stated only a conclusion of law. Bridgeport Sav. Bank v. Randall, 15. Wis. 541; Baxter v. State, 15 Wis. 488; Shepard v. McNeil, 38 Cal. 73; Carey v. Brown, 62 Cal. 373. Kirsch v. Smith, 64 Cal. 13, and Aultman v. McLean, 27 Iowa 129, where the proposed amendment of an answer alleged facts which constituted no defense. Toledo Sav. Bank v. Rothman, 78 Iowa 288; Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123; Steinhauser v. Spraul, 114 Mo. 551; Rio v. Gordon, 14 La. 418. See also Rehfuss v. Gross, 108 Pa. St. 521. 3. Mansfield v. Wilkerson, 26 Iowa 482; Commercial Nat. Bank v. Gibson, 37 Neb. 750. Edgar v. Stevenson, 70 Cal. 286, and Phenix Ins. Co. v. Stocks, 149 111. 319, where the proof that might have been offered under the amendment was admissible under the original pleading. Ineffective Amendment. It is not er- ror to refuse to allow an amendment of a demurrer where the amendment in legal effect adds nothing to the orig- inal. Hainer v. Iowa Legion of Honor, 78 Iowa 245. 4. Hawley v. Harran, 79 Wis. 379; Shipman v. State, 43 Wis. 381; Clark- son v. Hoyt (Cal., 1894), 36 Pac. Rep. 382, a proposed amendment of an an- swer setting up fraud in general terms. Harney v. Corcoran, 60 Cal. 314. 5. Peck v. Rees, 7 Utah 467; Beavers v. Hardie, 59 Ala. 570; Blakemore r. Wood, 3 Sneed (Tenn.) 470; State v. Keokuk, 18 Iowa 390; Whalley v. Small, 29 Iowa 288; Sleeman v. Hotch- kiss (Supreme Ct.), 37 N. Y. St. Rep. 648; Work v. Rexford (Supreme Ct.), 33 N. Y. St. Rep. 1001, n N. Y. Supp. 616; Carpenter v. Knapp (Supreme Ct.),26 N. Y. Supp. 436; Musselman v. Musselman, 44 Ind. 113; Midland Pac. R. Co. v. McDermid, 91 111. 172. See also Wehle v. Koch (Super. Ct.), 19 N. Y. Supp. 189; Hardy v. Nelson, 27 Me. 525. 523 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. is not error to refuse leave to file an amendment to which a demurrer would be sustained, 1 or to set up matter which has already been presented by a sufficient pleading. 2 4. Amendments Discretionary a. REVIEW OF DISCRETION (i) On What Grounds. At Common Law the amendment of pleadings was regarded as a matter so exclusively addressed to the dis- cretion of the trial court that its allowance or refusal could not be reviewed upon error. 3 In Many of the states and in the federal Supreme Court this rule still obtains, the appellate tribunal declining to review the de- cision of the lower court except where it was based solely upon a mistaken view as to its power to allow the amendment. 4 Amendment Contradicting Facts. ~Where the affidavit in support of an application to amend shows that the amendment would not accord with the facts, the motion will be denied. Peo- ple v. Sackett, 14 Mich. 320. But where affidavits in opposition to a. motion suggest the falsity of the proposed amendment, the court will not refuse leave unless the pleading is so clearly sham that it would be stricken out on motion. Hughes v. Heath, 9 Abb. Pr. N. S. (N. Y. Su- preme Ct.) 275. 1. Beavers v. Hardie, 59 Ala. 570; Blakemore v. Wood, 3 Sneed (Tenn.) 470. Insufficient Amendment. In no case should a party be permitted to file an insufficient plea. Pennington v. Ware, 16 Ark. 120. But it was said in Camp- tell v. Campbell, 23 Abb. N. Cas. (N. Y. Supreme Ct.) 187, that the court will not, as a general rule, undertake to determine, upon an application for leave to amend, whether the pro- posed amendment sets forth a cause of action or defense which can be finally maintained, unless it can be made to appear conclusively that the amendment, if granted, could be of no possible avail to the party making it. Making Original Pleading Defective. An amendment to a declaration will not be allowed when it would leave the declaration defective on its face. Gilman v. Meredith School Dist., 18 N. H. 215. 2. Commercial Nat. Bank v. Gibson, 37 Neb. 750; Dorn v. Baker, 96 Cal. 206; Heilbron v. Kings River, etc., Canal Co., 76 Cal. li; Hurlbut v. In- terior Conduit, etc., Co. (Super. Ct.), 23 N. Y. Supp. 1007; Mayer v. Wood- bury, 14 Iowa 57; Harvey v. Spaulding, 7 Iowa 423; Robinson v. Erickson, 25 Iowa 85; Brown v. Ellis, 26 Iowa 85; Smith 'v. Fellows, 58 Ala. 467; Rawle v. Skipwith, 8 Martin N. S. (La.) 407. See also Jones v. Ritter, 56 Ala. 270. 3. Burk v. Huber, 2 Watts (Pa.) 306; Davis v. Church, I W. & S. (Pa.) 240; Clymer v. Thomas, 7 S. & R. (Pa.) 178; Smith v. Kessler, 44 Pa. St. 142; Ordroneaux v. Prady, 6 S. & R. (Pa.) 510; Caldwell v. Remington, 2 Whart. (Pa.) 132; Tryon v. Miller, i Whart. (Pa.) u; Sweigart v. Lowmarter, 148. & R. (Pa.) 200; Bowman v. De Peyster, 2 Daly (N.Y.) 205, citing Hart v. Seixas, 21 Wend. (N. Y.) 51 ; Cooper v. Bissell, 15 Johns. (N.Y.) 319; Travis v. Waters, 12 Johns. (N. Y.) 506; Clason v. Shot- well, 12 Johns. (N. Y.) 31; Chichester v. Cande, 3 Cow. (N. Y.) 44, note; Mandeville v. Wilson, 5 Cranch (U.S.), 15; Chirac v. Reinicker, u Wheat. (U. S.) 280; Mellish v. Richardson, 9 Bing. 125. See also Price v. New Jersey R. , etc., Co., 31 N. J. L. 236; Syme v. Jude, 3 Call (Va.) 522; Helm v. Rodgers, 5 Humph. (Tenn.) 105; Neal v. Spooner, 20 Fla. 38; Planters' & Merchants' Bank v. Willis, 5 Ala. 770; Holloway v. Lowe, I Ala. 246; Watkins v. Canterberry, 4 Port. (Ala.) 415; and the early Illinois cases cited in the next note but one. The English statute 3 & 4 Will. IV. c. 42, 23, authorizing amendments to avoid a variance, expressly permits an application for a new trial in case the amendment is allowed. But if the amendment is denied, it has been held that the decision is not subject to re- view. Doe v. Errington. I Ad. & El. 750, 28 E. C. L. 199. See Wilkin v. Reed, 15 C. B. 192. 4. United States. Chapman v. Bar- ney, 129 U. S. 677; Marine Ins. Co. v. Hodgson, 6 Cranch (U. S.) 206; Chirac v. Reinicker, n Wheat. (U. S.) 280; 524 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. in Other states, especially where the Code system has been U. S. v. Buford, 3 Pet. (U. S.) 12; McGlinchy v. United States, 4 Cliff. (U.S.) 312; Waldenz/. Craig, 9 Wheat. (U. S.) 576; Smith v. Vaughan, 10 Pet. (U. S.) 366. Compare the remarks of Chief Justice Marshall in Mandeville v. Wilson, 5 Cranch (U. S.) 15, and of McCormick, C.J., in Maddox v. Thorn, 60 Fed. Rep. 220. See also Watts v, Weston, 62 Fed. Rep. 136. Connecticut. Merriam v. Langdon, 10 Conn. 460 ; Taylor v. Keeler, 51 Conn. 397 ; McAllister v. Clark, 33 Conn. 253. Delaware. Thompson v. Thomp- son, 6 Houst. (Del.) 225; Vandergrift v. Hollis, 6 Houst. (Del.) 90. Maine. Oilman v. Emery, 54 Me. 460; Moor v. Shaw, 47 Me. 88; Wight v. Stiles, 29 Me. 164; Wyman v. Door, 3 Me. 183; Clapp v. Blach, 3 Me. 216; Foster v. Haines, 13 Me. 307; Simpson v. Norton, 45 Me. 281; Ayer v. Glea- son, 60 Me. 207; Cameron v. Tyler, 71 Me. 27; Solon v. Perry, 54 Me. 493; Rowell v. Small, 30 Me. 30. Maryland. Scarlett v. Academy of Music, 43 Md. 203; Calvert v. Carter, 18 Md. 108; Warren v. Twilley, loMd. 46; Thomas v. Doub, i Md. 324; Elli- cott v. Eustace, 6 Md. 506; Staley v. Thomas, 68 Md. 439. See Gordon v. Downey, I Gill (Md.) 41 ; Dyson v. West, i Har. & J. (Md.) 567. Massachusetts. The later cases de- clare the rule to be that if it is within the power of the court to allow an amendment it is within its discretion to deny, and that no exception lies to the exercise of discretion. Barlow v. Nelson, 157 Mass. 395; Church v. Phillips, 157 Mass. 566; Terry v. Brightman, 133 Mass. 536 ; Ford v. Ford, 104 Mass. 198; George v. Reed, 101 Mass. 378; Sheldon v. Smith, 97 Mass. 36; Hutchinson v. Tucker, 124 Mass. 240; Richmond Iron Works v. Woodruff, 8 Gray (Mass.) 447; Augur Steel Axle, etc., Co. v. Whittier, 117 Mass. 451 ; Looney v. Looney, 116 Mass. 283; Payson v. Macomber, 3 Allen (Mass. ) 69 ; Gwynn v. Globe Locomotive Works, 5 Allen (Mass.) 317; Lang v. Bunker, 6 Allen (Mass.) 61; Ham v. Kerwin, 146 Mass. 378; Wood v. West Boston, etc., Bridges, 122 Mass. 394. Compare the following earlier cases : Slater v. Nason, 15 Pick. (Mass.) 345; Brickett v. Davis, 21 Pick. (Mass.) 404; Dodge z/.Tileston, 12 Pick. (Mass.) 328; Kincaid v. Howe, 10 Mass. 203; Perkins v. Burbank, 2 Mass. 81. New Hampshire. Gagnon v. Con- nor, 64 N. H. 276; Morse v. Whitcher, 64 N. H. 591; Sawyer v. Keene, 47 N. H. 173. See also Perley v. Brown, 12 N. H. 493. New Jersey. U. S. Watch Co. v. Learned, 36 N. J. L. 429, where the amendment was allowed. See Hobo- ken v. Gear, 27 N. J. L. 265; Price v. New Jersey R., etc., Co., 31 N. J. L. 229; Crawford v. New Jersey R. Co., 28 N. J. L. 479; Joslin v. New Jersey Car Spring Co., 36 N. J. L. 141; Bruch v. Carter, 32 N. J. L. 554. New York. In Davis v. New York, etc., R. Co., no N. Y. 646, 14 N. Y. St. Rep. i, the court said: "As the court had power in the exercise of its dis- cretion to allow this amendment, we have no jurisdiction to review its dis- cretion." See also, to the same effect, Reed v. New York, 97 N. Y. 620; Holyoke v. Adams, 50 N. Y. 233; Thompson v. Kessel, 30 N. Y. 383; Classon v. Cooley, 8 N. Y. 426; Free- man v. Grant, 132 N. Y. 22; Coffin v. Grand Rapids Hydraulic Co., 136 N. Y. 655; Richtmyer v. Remsen, 38 N. Y. 206; Phoenix Warehousing Co. v. Badger, 67 N. Y. 294; Quimby v. Claf- lin, 77 N. Y. 270; Riggs v. Waydell, 78 N. Y. 586; Hatch v. Central Nat. Bank, 78 N. Y. 487; Fisher v. Gould, 81 N. Y. 228; Price v. Brown, 98 N. Y. 388; White v. Stevenson, 4 Den. (N. Y.) 193; Robbins v. Richardson, 2 Bosw. (N. Y.) 248. In the inferior or intermediate courts of New York possessing appellate ju- risdiction the exercise of discretion is a subject of review. Ansonia Brass, etc., Co. v. Gerlach (C. PI.), 28 N. Y. Supp. 5^0; Brady v. Cassidy (C. PL), 37 N. Y. St. Rep. 501; Miner v. Baron (Supreme Ct.), 39 N. Y. St. Rep. 893; Cumbers. Schoenfeld, 16 Daly(N. Y.) 454; Baldwin v. New York, etc., Nav. Co., 4 Daly (N. Y.) 314; Seaver v. New York, 7 Hun (N. Y.) 331; Burnap v. Halloran, I Code Rep. (N. Y.) 51; Heyler v. New York News Pub. Co. (Supreme Ct.), 24 N. Y. Supp. 499; Smith v. Equitable Mort. Co. (Supreme Ct.), 26 N. Y. Supp. 180; Newerf v. Jebb (Supreme Ct.), 6 N. Y. Supp. 581; Elting v. Dayton, 67 Hun (N. Y.) 425; Buck v. Barker (Super. Ct.), 5 N. Y.. 525 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. adopted, decisions granting or refusing leave to amend are sub- St. Rep. 826; Powers v. Fox (City Ct.), 11 N. Y. St. Rep. 651 ; Benson v. McNamee (Supreme Ct.), 12 N. Y. St. Rep. 503; Pracht v. Ritter, 48 N. Y. Super. Ct. 509; Coates v. Donnell, 48 N. Y. Super. Ct. 46; Tovey v. Culver, 54 N. Y. Super. Ct. 404; Sheldon v. Adams, 41 Barb. (N. Y.) 54; Harring- ton v. Slade, 22 Barb. (N. Y.) 161; Bailey v. Kay, 50 Barb. (N. Y.) no; New v. Aland, 62 How. Pr. (N. Y. Supreme Ct.) 185; Johnsons. American Writing Mach. Co. (Super. Ct.), 4 N. Y. Supp. 391; Page v. Voorhies (City Ct.), 16 N. Y. Supp. 101; Bradley v. Shafer (Supreme Ct.), 19 N. Y. Supp. 640; Wilson v. Spafford (Supreme Ct.), 32 N. Y. St. Rep. 532; Work v. Rex- ford (Supreme Ct.), 33 N. Y. St. Rep. 1001; Sleeman v. Hotchkiss (Supreme Ct.), 36 N. Y. St. Rep. 540. Com- pare Tighe v. Pope, 16 Hun (N. Y.) 180; Rosenwald v. Hammerstein, 12 Daly (N. Y.) 377; Phincle v. Vaughan, 12 Barb. (N. Y.) 215; Nethercott v. Kelly (Super. Ct.), 5 N. Y. Supp. 259; McElwain v. Corning, 12 Abb. Pr. (N. Y. Super. Ct.) 16 ; Bowman v. De Pey- ster, 2 Daly (N. Y.) 203; Johnson v. Brown, 57 Barb. (N. Y.) 118; Rich- mond v. Second Ave. R. Co. (Super. Ct.), 29 N. Y. Supp. 588. Pennsylvania. Under the act of 1806 certain amendments were a mat- ter of right, and refusal to allow them was a subject of error. Sweigart v. Lowmarter, 14 S. & R. (Pa.) 200; Me- chanics', etc., Ins. Co. v. Spang, 5 Pa. St. 113; Young v. Com., 6 Binn. (Pa.) S8; Com. v. Mecklin, 2 Watts (Pa.) 130; Yost v. Eby, 23 Pa. St. 327; Megargell v. Hazleton Coal Co., 8 W. & S. (Pa.) 342; Newlin v. Palmer, n S. & R. (Pa.) 98; Rahauser v. Schwer- gerbarth, 3 Watts (Pa.) 28; Mans v. Montgomery, 10 S. & R. (Pa.) 192; Stewart v. Kelly, 16 Pa. St. 160; Sharp v. Sharp, 13 S.'& R. (Pa.) 444; Johns v. Bolton, 12 Pa. St. 339; Hartman v. Keystone Ins. Co., 21 Pa. St. 466; Smith v. Kessler, 44 Pa. St. 142. Corn- fare Fox v. Foster, 4 Pa. St. 119; Wag- goner v. Line, 3 Binn. (Pa.) 589. But amendments not provided for by that act were subject to the com- mon-law rule. The cases are cited in the preceding note. By the acts of April 16, 1846; May 4, 1852, and April 12, 1858, it is the abso- lute right of parties to strike the names of either plaintiffs or defendants where there is an allegation of mistake either in fact or law. Cochran v. Arnold, 58 Pa. St. 399; Patton v. Pittsburgh, etc., R. Co., 96 Pa. St. 169. In other respects, amendments are now regarded as discretionary and subject to review in case of abuse. Battles v. Sliney, 126 Pa. St. 460; Her- man v. Rinker, 106 Pa. St. 121; Bricker v. Dull, 82 Pa. St. 328; Robeson v. Whiteside, 16 S. & R. (Pa.) 320; Kel- logg. Gilfillan(Pa., 1887), 10 All. Rep. 888; Perdue v. Taylor, 146 Pa. St. 163; Leeds v. Lockwood, 84 Pa. St. 70; Heller v. Royal Ins. Co., 151 Pa. St. 101; Melvin v. Melvin, 130 Pa. St. 6 ; Magill's Appeal, 59 Pa. St. 430; Scott v. Kittanning Coal Co., 89 Pa. St. 231; Young v. Young, 88 Pa. St. 422. Vermont. Callender v. Sweat, 14 Vt. 160; Montgomery v. Maynard, 33 Vt. 450; Waterman v. Hall, 17 Vt. 128 ; Harris v. Belden, 48 Vt. 478; Bates v. Cilley, 47 Vt. i; Lippett v. Helley, 46 Vt. 516. Florida. In Florida the act of Jan. 7, 1853, makes any order refusing to allow an amendment reviewable by the Supreme Court. Robinson v. Hart- ridge, 13 Fla. 501. But where an amendment is allowed, the court leans toward the English rule, which pre- cludes any review. Neal TJ. Spooner, 20 Fla. 38. North Carolina. In North Carolina the exercise of discretion is not re- viewed unless a substantial right is impaired, which usually occurs only when there is an absence of power, Murphy v. Gibbs (N. Car., 1890), 12 S. E. Rep. 272; State v. Roseman, 72 N. Car. 427; Alamance Co. v. Blair, 76 N. Car. 136; Bushee v. Surles, 79 N. Car. 51; Henrys. Cannon, 86 N. Car. 24; Gilchrist v. Kitchen, 86 N, Car. 20; Wiggins v. McCoy, 87 N. Car. 499; Loftin v. Rouse, 94 N. Car. 508; Jarrett v. Gibbs, 107 N. Car. 303 . Sinclair v. Western N. Car. R. Co., in N. Car. 507; Hunt v. Crowell, 2 Murph. (N. Car.) 424; Biggs v. Will- iams, 66 N. Car. 427; Quiett v. Boon, 5 Ired. (N. Car.) 9; Anders v. Mer- redith, 4 Dev. & B. (N. Car.) 199; Gill v. Young, 88 N. Car. 58; Austin v. Clark, 70 N. Car. 458; Henderson v. Graham, 84 N. Car. 496; Warden v. McKinnon, 99 N. Car. 251. 526 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. ject to review, but will be sustained unless there appears to have been a palpable abuse of discretion under all the circumstances. 1 According to the earlier cases the review was certainly confined to ques- tion of power. Pendleton v. Pendle- ton, 2 Jones (N. Car.) L. 135; Ingram v. McMorris, 2 Jones (N. Car.) L. 450. South Carolina. In South Carolina the rule seems to be the same as in North Carolina, supra. Zimmerman v. Amaker, 10 S. Car. 98; Suber v. Chand- ler, 28 S. Car. 382; Garlington v. Copeland, 32 S. Car. 601; Richardson v. Wallace, 39 S. Car. 216; Seegers v. McCreery (S. Car., 1894), 19 S. E. Rep. 696; Sibley v. Young, 26 S. Car. 415; McKnight v. Cooper, 27 S. Car. 92; Trumbo v. Finley, 18 S. Car. 305; McCaslan v. Latimer, 17 S. Car. 123; Mason v. Johnson, 13 S. Car. 20; Chi- chester v. Hastie, 9 S. Car. 330. See Mobley v. Mobley, 7 Rich. (S. Car.) 431; Lilly v. Charlotte, etc., R. Co., 32 S. Car. 142; Munroe v. Williams, 35 S. Car. 572. 1. Arkansas. Mohr v. Sherman, 25 Ark. 7; King v. Caldwell, 26 Ark. 405; McMurray v. Boyd, 58 Ark. 504; At- kinson -v. Cox, 54 Ark. 444; McFadden v. Stark, 58 Ark. 7; Ford v. Ward, 26 Ark. 360. California. Wixon v. Devine, 91 Cal. 477; Fitzgerald v. Neustadt, 91 Cal. 600; Jackson v. Jackson, 94 Cal. 446; Sharon v. Sharon, 77 Cal. 102; Coubrough v. Adams, 70 Cal. 374; Stringer v. Davis, 30 Cal. 322; Latti- mer v. Ryan, 20 Cal. 628; Irwin v. Mc- Dowell (Cal., 1893), 34 Pac. Rep. 708; Farmers' Nat. Gold Bank v. Stover, 60 Cal. 387; Sweeney v. Stanford, 60 Cal. 362; Gillan v. Hutchinson, 16 Cal. 154; D jrn v. Baker, 96 Cal. 206; Robinson v. Smith, 14 Cal. 254; Canfield v. Bates, 13 Cal. 606; Arrington v. Tup- per, 10 Cal. 464; Butler v. King, 10 Cal. 342; Heilboon v. Kings River, etc., Canal Co., 76 Cal. u; Swain v. Burnett, 76 Cal. 299; Riverside Land, etc., Co. v. Jensen, 73 Cal. 550; Harney 7. Corcoran, 60 Cal. 314; Lower Kings River Water Ditch Co. v. Kings River, etc., Canal Co., 67 Cal. 577; Carey v. Brown, 62 Cal. 373; Martin v. Thompson, 62 Cal. 618; Kirsch v. Smith, 64 Cal. 13; Shepard v. McNeil, 38 Cal. 73; Edgar v. Stevenson, 70 Cal. 286; Bradley v. Parker (Cal., 1893), 34 Pac. Rep. 234; Drew v. Hicks (Cal., 1894), 35 Pac. Rep. 563; Duff v. Duff, 101 Cal. i; Clarkson v. Hoyt (Cal. I 894), 36 Pac. Rep. 382 ; Smith v. Yreka Water Co., 14 Cal. 201; Lestrade v. Barth, 17 Cal. 285; Peters v. Foss, 16 Cal. 357; Pierson v. McCahill, 22 Cal. 127; Levinson v. Schwartz, 22 Cal. 229; Cooke v. Spears, 2 Cal. 409; Ne- vada County, etc., Canal Co. v. Kidd, 37 Cal. 282; Stearns v. Martin, 4 Cal. 227; Jessup v. King, 4 Cal. 331; Smith v. Dorn, 96 Cal. 73; Southern Pac. R. Co. v. Purcell, 77 Cal. 69; Bulwer Con- solidated Min. Co. -v. Standard Con- solidated Min. Co., 83 Cal. 613 ; Chatfield v. Williams, 85 Cal. 518 ; McPherson v. Weston, 85 Cal. 90; Beronio v. Southern Pac. R. Co., 86 Cal. 415; Buckley v. Howe, 86 Cal. 596; Shadburne v. Daly, 76 Cal. 355; Cain v. Cody (Cal., 1892), 29 Pac. Rep. 778; Cheney v. O'Brien, 69 Cal. 199; Schil- ling v. Holmes, 23 Cal. 232; Gluckauf v. Bliven, 23 Cal. 314; In re Hidden's Estate, 3 Cal. 362; Gavitt v. Doub, 23 Cal. 79; Ferrer v. Home Mut. Ins. Co., 47 Cal. 416. Colorado. Cooper v. Wood, I Colo. App. 101; Sylvester v. Jerome (Colo., l8 93). 34 Pac- Rep. 760; Patrick v. Crowe, 15 Colo: 543; Buddee v. Spang- ler, 12 Colo. 216; W 7 eese v. Barker, 7 Colo. 178 ; Brown v. Nachtrieb, 6 Colo. 517; Dyer v. McPhee, 6 Colo. 174; Cooper v. McKeen, n Colo. 41; Sears v. Collins, 5 Colo. 492; Tribune Pub. Co. v. Hamill, 2 Colo. App. 237; Barton v. Laws (Colo. App., 1894), 35 Pac. Rep. 284; Buno v. Gomer, 3 Colo. App. 456. Illinois. Phenix Ins. Co. v. Stocks, 149 111. 319; Carlyle v. Carlyle Water, etc., Co., 140 111. 445; Chandler v. Frost, 88 111. 559; Dow v. Blake, 148 111. 76. See also Chicago, etc., R. Co. v. Goyette, 133 111. 219. The earlier cases held that the exercise of discretion could not be reviewed. Lan- sing v. Birge, 3 111. 375; Warren v. McHatton, 3 111. 32; Phillips v. Dana, 2 111. 498; Ballance v. Curtenius, 8 III. 449- Idaho. Palmer v. Utah, etc., R. Co., 2 Idaho 350. Indiana. Lindley v. Sullivan, 133 Ind. 588; Peigh v. Huffman, 6 Ind. App. 658 ; Bever v. North, 107 Ind. 544; Dewey v. State, 91 Ind. 173; Levy v. Chittenden, 120 Ind. 37; Hay v. State, 58 Ind. 337 ; Judd :. Small, 107 Ind. 398; McKeen v. 5 2 7 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Construction of statute. A statute authorizing amendments by either party of course, at any time before the pleading is answered, Porter, 134 Ind. 483; Stanton v. 650; Nelson v. Hays, 75 Iowa 671; Kewrick (Ind., 1893), 35 N. E. Rep. George v. Swafford, 75 Iowa 491; 19; Grand Rapids, etc., R. Co. v, Elli- Eslich v. Mason City, etc., R. Co., 75 son (Ind., 1888), 18 N. E. Rep. 507; Iowa 443; Crismon v. Deck, 84 Iowa Burns v. Fox, 113 Ind. 205; Nyse- 344; Schoenhofen Brewing Co. v. Arm- wander v. Lowman, 124 Ind. 584; strong (Iowa, 1894), 57 N. W. Rep. 436; Hoffman v. Rothenberger, 82 Ind. 474; Bunyan v. Loftus (Iowa, 1894), 57 Martinsville v. Shirley, 84 Ind. 546; N. W. Rep. 685; Aultman v. Shelton Shropshire v. Kennedy, 84 Ind. in; (Iowa, 1894), 57 N. W. Rep. 857. Lewark v. Carter, 117 Ind. 206; Louis- A'ansas. Taylor v, Clendening, 4 ville, etc., R. Co. v. Hubbard, n6Ind. Kan. 524; Kansas Pac. R. Co. v. 193; Meyer v. State, 125 Ind. 335; Kunkel, 17 Kan. 145 ; Wright v. Child v. Swain, 69 Ind. 230; Wayne Bacheller, 16 Kan. 259; Kansas Farm- County Turnpike Co. v. Berry, 5 Ind. ers' Mut. F. Ins. Co. v. Amick, 37 286; Gaff v. Hutchinson, 38 Ind. 341; Kan. 73; Smith v. Smith, 22 Kan. 699; Koons v. Price, 40 Ind. 164; Shaw v. Missouri Pac. R. Co. v. McCally, 41 Binkard, 10 Ind. 227; Voltz v. New- Kan. 639; Harper v. Hendricks, 49 bert, 17 Ind. 187; Burns v. Simmons, Kan. 718; Stith v. Fullinwider, 40 101 Ind. 557; Maxwell v. Day, 45 Ind. Kan. 73; Byington v. Saline County, 509; Burr v. Mendenhall, 49 Ind. 496; 37 Kan. 654; Leroy, etc. R. Co. v. Chicago, etc., R. Co. v. Jones, 103 Small, 46 Kan. 300; Baughman v. Ind. 386; Rettig v. Newman, 99 Ind. Hale, 45 Kan. 453; Gaylord v. Steb- 424; Daggett v. Flanagan, 78 Ind. 253; bins, 4 Kan. 42; Hanlin v. Baxter, 20 Duncan v. Cravens, 55 Ind. 525; Spath Kan. 134; Rogers v. Hodgson, 46 Kan. v. Hankins, 55 Ind. 155 ; City of 276; Davis v. Wilson, n Kan. 74; Aurora v. Cobb, 21 Ind. 492; Adams Wilson z>. Phillips, 8 Kan. 211; Hodges v. Main, 3 Ind. App. 232 ; Sand- v. Farnham, 49 Kan. 777; Brenner v. ford Tool, etc., Co. v. Muller, i Ind. Luth, 28 Kan. 581; Perry v. Jones, 18 App. 204; Shelby County v. Castetter, Kan. 552; Hobson v. Ogden, 16 Kan. 7 Ind. App. 309. 388; Kunz v. Grund, 12 Kan. 547; Iowa. Harkins v. Edwards, I Iowa Prater v. Snead, 12 Kan. 447. 296; Logan v. Tibbott, 4 Greene Kentucky. Donnelly -v. Pepper, (Iowa) 389; Wilson v. Johnson, I 91 Ky. 363; Downing z\ Bacon, 7 Bush Greene (Iowa) 147; Wyland v. Mendel, (Ky.) 680; Hubble v. Murphy, i Duv. 78 Iowa 739; Marling v. Burlington, (Ky.) 278; Kearney v. Covington, I etc., R. Co., 67 Iowa 331; Harrington Mete. (Ky.) 339; Thomas v. See, 8 B. v. Christie, 47 Iowa 319; Phillips v. Mon. (Ky.) 5; Lane v. Traders' De- Van Schaick, 37 Iowa 229; Packard v. posit Bank (Ky., 1893), 21 S. W. Rep. Snell, 35 Iowa 80; Smith v. Howard, 750; Cavanaugh v. Britt, 90 Ky. 273; 28 Iowa 51; Bates v. Bates, 27 Iowa Mudd v. Mudd (Ky., 1890), 14 S. W. no; Brockman v. Berryhill, 16 Iowa Rep. 355; Greer ^'. Covington (Ky., 183; Hall z/. Doran, 6 Iowa433; Fulmer 1885), 2 S. W. Rep. 323; Palmer v. v. Fulmer, 22 Iowa 230; Mansfield v. Hamilton (Ky., 1894), 24 S. W. Rep. Wilkerson, 26 Iowa 482; Aultman v. 613; Greer v. Louisville, etc., R. Co. McLean, 27 Iowa 129; Pride v. Worm- (Ky. , 1893), 21 S. W. Rep. 649; Stone wood, 27 Iowa 257; Mayer v. Wood- v. Mattingly (Ky., 1892), 19 S. W. bury, 14 Iowa 57; Dunton v. Thoring- Rep. 402; Louisville Underwriters v. ton, 15 Iowa 217 ; Brockman v. Pence (Ky., 1892), 19 S. W. Rep. 10; Berryhill, 16 Iowa 183; Hatfield v. Persifull v. Boreing (Ky., 1893), 22 Gano, 15 Iowa 177; State v. Keokuk, S. W. Rep. 440; Owensboro, etc., R. 18 Iowa, 390; Hainer v. Iowa Legion Co. v. Harrison (Ky., 1893), 22 S. W. of Honor, 78 Iowa 245; Harvey v. Rep. 545; Newton v. Terry (Ky., Spaulding, 7 Iowa 423 ; Chlein v. 1892), 22 S. W. Rep. 159.) Kabat, 72 Iowa 291; Deere u. Nelson, Louisiana. Lampton v. State Nat. 73 Iowa 186; Wankon v. Strouse, 74 Bank, 41 La. Ann. 719; McCubbin v. Iowa 547; Tiffany v. Henderson, 57 Hastings, 27 La. Ann. 713, limited in Iowa 490; Gray v. Regan, 37 Iowa Hart v. Bowie, 34 La. Ann. 323; Hick- 688; Davis v. Chicago, etc., R. Co., 83 man v. Boggins, 14 La. Ann. 618; Iowa 744; Maish v. Crangle, 80 Iowa West v. Hickman, 14 La. Ann. 620; 528 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. arid providing that " all other amendments shall be by leave of the court," does not confer unlimited power and discretion, and 133) the allowance of amendments when offered at the proper time was mandatory. Shields v. Taylor, 13 Smed. & M. (Miss.) 127; Stephens v. Commercial, etc., Bank, 31 Miss. 438; Dent v. Coleman, 10 Smed. & M. (Miss.) 83; Wharton v. Porter, 10 Smed. & M. (Miss.) 305. See also Cooper v. Cranberry, 33 Miss. 117. Prior to the statute the allowance of amendments seems to have been reviewable only for want of power. Vicksburg W. & B. Co. v. Washington, i Smed. & M. (Miss.) 536; Henderson v. Hainer, 5 How. (Miss.) 525; Green v. Robinson, 3 How. (Miss.) 105. Missouri. Allen v. Ranson, 44 Mo. 263; Davis v. Ritchie, 85 Mo. 501; Goddard v. Williamson, 72 Mo. 131; State v. Sandusky, 46 Mo. 377; Thomp- son v. Mosely, 29 Mo. 477; Chauvin v. Lownes, 23 Mo. 223; Long v. Overton, 7 Mo. 567; Glasscock v. Glasscock, 8 Mo. 577 ; Dozier v. Jerman, 30 Mo. 216; Ferguson v. Hannibal, etc., R. Co., 35 Mo. 452; Greene v. Gallagher, 35 Mo. 226; Dai- lam v. Bowman, 16 Mo. 225; Cayce v. Ragsdale, 17 Mo. 32; Pomeroy v. Brown, 19 Mo. 302; Cullum v. Cun- diff, 20 Mo. 522; Riggin v. Collier, 6 Mo. 568; Caldwell v. McKee, 8 Mo. 334; Renfro v. Prior, 22 Mo. App. 403; Waverly Timber, etc., Co. v. St. Louis Cooperage Co., 112 Mo. 383; Collins v. Glass, 46 Mo. App. 297; Turner v. Thomas. 10 Mo. App. 338; Robertson v. Springfield, etc., R. Co., 21 Mo App. 633; Corby v. Wright, 4 Mo. App. 443; Steinhauser v. Spraul. 114 Mo. 551. Montana. Billings v. Sanderson, 8 Mont. 201; Wormall v. Reins, i Mont. 630. Nebraska. Mills v. Miller, 3 Neb. 87; Ward v. Parlin, 30 Neb. 376; Union Pacific R. Co. v. Broderick, 35 Neb. 739; Brown v. Rogers, 20 Neb. 547; Klosterman v. Olcott, 25 Neb. 382; Healy v. Aultman, 6 Neb. 349; Singer Mfg. Co. v. Doggett, 16 Neb. 609; Hedges v. Roach, 16 Neb. 673; Bush v. Bank of Commerce, 38 Neb. 403; Omaha, etc., R. Co. v. Moshel, 38 Neb. 281; Commercial Nat. Bank v. Gibson 37 Neb. 750; Omaha, etc., R. Co. v. Brown, 29 Neb. 492; Johnson v. Swayze, 35 Neb. 117. Nevada. Dorn v. O'Neale, 6 Nev. 155; Carlyon v. Lannan, 4 Nev. 156; Tucker v. Liles, 3 La. 297; Carter v. Farrell, 39 La. Ann. 102; Boagni v. Anderson, 32 La. Ann. 920; Mouton v Cameau, 5 La. Ann. 566; Adle v. Metoyer, I La. Ann. 254; Holmes v. Steamer Chieftain, I La. Ann. 136; Thomas v. Baillo, 7 La. 410; Mitreaud v. Delassize, 13 La. 416; Rio. Gordon, 14 La. 418; Succession of Rouzan, 7 Rob. (La.) 436. Michigan. Pangborn v. Continental Ins. Co., 67 Mich. 683; Minnock v. Eureka F. & M. Ins. Co., 90 Mich. 236; Foley v. Riverside Storage, etc., Co., 85 Mich. 7; Ludeman v. Hirth, 96 Mich. 17; Wolscheid v. Thome, 76 Mich. 265; Mead v. Glidden, 79 Mich. 209; People v. Wayne Circuit Judge, 41 Mich. 727; Sick v. Michigan Aid Assoc., 49 Mich. 50; Browne v. Moore, 32 Mich. 254; Polhemus v. Ann Ar- bor Sav. Bank, 27 Mich. 45; Beecher v. Wayne Circuit Judges, 70 Mich. 363; Randall v. Baird, 66 Mich. 312; Monaghan v. Agricultural F. Ins. Co., 53 Mich. 238; Hollywood v. Reed, 57 Mich. 234; Kennedy v. Brown, 50 Mich. 336; Borden v. Clark, 26 Mich. 410; Wood -v. Metropolitan L. Ins. Co., 96 Mich. 437; Wood v. Lane, 84 Mich. 521; Beneway v. Thorp, 77 Mich. 181. Minnesota. Brazil v. Moran, 8 Minn. 236; Dougan v. Turner, 51 Minn. 330; Iverson v. Dubay, 39 Minn. 325; Iltis v. Chicago, etc., R. Co., 40 Minn. 273; Osborne v. Williams, 37 Minn. 507; McEvoy v. Bock, 37 Minn. 402; North v. Webster, 36 Minn. 99; Winona v. Minnesota R. Const. Co., 29 Minn. 68; Carli v. Union Depot, etc., Co., 32 Minn. 101; Guerin v. St. Paul F. & M. Ins. Co., 44 Minn. 20; Burke v. Baldwin, 54 Minn. 514; Bitzer v. Campbell, 47 Minn. 221; Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123; Fowler v. Atkin- son, 5 Minn. 505; Bruns v. Schreiber, 48 Minn. 366; Morrison v. Lovejoy, 6 Minn. 319. Mississippi. The Gen. Stat., 1581, provides that the allowance or refusal of amendments may be assigned for error. But the abuse of discretion must be clear to warrant a reversal. Barker v. Justice, 41 Miss. 240; Bloom -v. Price, 44 Miss. 73; Currie v. Natchez, etc., R. Co., 61 Miss. 725. Under the Act of 1840 (Sheet Acts, p. i Encyc. PI. & Pr. 34. 529 Of Pleadings, etc , at AMENDMENTS. Common Law, under Codes, etc. the appellate court may revise, reverse, or affirm when the dis- cretion is improperly and illegally or unreasonably exercised. 1 Absolute Eight. Occasionally the allowance of amendments is made peremptory by statute. 3 Beck v. Thompson (Nev., 1894) 36 Pac. Rep. 562. New Mexico. Beall v. Territory, i N. Mex. 507. New York. See the New York cases cited in the preceding note. Ohio. Brock v. Bateman, 25 Ohio St. 609; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; Schneider v. Hosier, 21 Ohio St. 109; Clark v. Clark. 20 Ohio St. 128. Oregon. Cook v. Croisan (Oregon, 1894), 36 Pac. Rep. 532; Garrison v. Goodale, 23 Oregon, 307; Hexter v. Schneider, 14 Oregon 184; Wild v. Oregon Short Line, etc., R. Co., 21 Oregon 159; Henderson v. Morris, 5 Oregon 24; Brauns v. Stearns, i Ore- gon 367; Wallace v. Baisley, 22 Oregon 572; Bowles v. Doble, n Oregon 474; Blanchard v. Bennett, i Oregon 328. Pennsylvania. See the Pennsylva- nia cases cited in the preceding note. South Dakota. Jenkinson v. Ver- million (S. Dak., 1892), 52 N. W. Rep. 1066; Yetzer v. Young (S. Dak., 1892), 52 N. W. Rep. 1054. Tennessee. Tennessee Bank v. Skil- lern, 2 Sneed (Tenn.) 698; Blakemore v. Wood, 3 Sneed (Tenn.) 470; Helm v. Rodgers, 5 Humph. (Tenn.) 105; Dockery v. Miller, 9 Humph. (Tenn.) 731; Cheek v. Merchants' Nat. Bank, 9 Heisk. (Tenn.) 489; Clark v. Thomas, 4 Heisk. (Tenn.) 419. Texas. Smith v. Anderson, 39 Tex. 496; Boren v. Billington, 82 Tex. 137; Austin v. Jordan, 5 Tex. 130; Richie v. Levy, 69 Tex. 133; Teas v. McDonald, 13 Tex. 349; Guim v. O'Daniel, 5 Tex. Civ. App. 112; Johnson ^ v. Borden (Tex. Civ. App., 1894), 25 S. W. Rep. 1131; Obert v. Landa, 59 Tex. 475; Phillips v. Patillo, 18 Tex. 518; Ann Berta Lodge v. Leverton, 42 Tex. 18; Hatchett v. Conner, 30 Tex. 104; Reid v. Allen, 18 Tex. 241; Matossy v. Frosh, 9 Tex. 610. Utah. Kelly v. Kershaw, 5 Utah 295; McCord, etc., Mercantile Co. v. Glen, 6 Utah 139. Washington. Skagit R., etc., Co. v. Cole, 2 Wash. 57. West Virginia. Ralston v. Meyer, 34 W. Va. 737. Wisconsin. Gillett v. Robbins, 12 Wis. 319; Capron v. Adams County, 43 Wis. 613; Chandros v. Edwards, 86 Wis. 493; Continental Ins. Co. v. Phil- lips, 83 Wis. 354; Hibbard v. Peek, 75 Wis. 619 ; Charnley v. Honig, 74 Wis. 163; Thorn v. Smith, 71 Wis. 18; Ball v. McGeoch, 78 Wis. 355; Patten Paper Co. v. Kaukauna Water-power Co., 79 Wis. 331; Hawley v. Harran, 79 Wis. 379; Brown v. Bosworth, 62 Wis. 542; Phillips v. Jarvis, 19 Wis. 204; State v. Homey, 44 Wis. 615; Kirch -v. Davies, 55 Wis. 287; Vliet v. Sherwood, 38 Wis. 159; Nys v. Bie- meret,44Wis. 104; Kretser v. Gary, 52 Wis. 374; Thomas v. Hatch, 53 Wis. 296; Ault v. Wheeler, etc., Mfg. Co., 54 Wis. 300; Plumer v. Clarke, 59 Wis. 646; Bean v. Moore, 2 Chand. (Wis.) 44; Bridgeport Sav. Bank v. Randall, 15 Wis. 541; Monaghan v. School Dist. No. i, 38 Wis. 100; Fox River Valley R. Co. v. Shoyer, 7 Wis. 365; Shieffe- lin v. Whipple, 10 Wis. 81; Milwau- kee, etc., R. Co. v. Finney, 10 Wis. 388; Baxter v. State, 15 Wis. 488; Hitchcock v. Merrick, 15 Wis. 522 ; Rublee v. Tibbetts, 26 Wis. 399; Moll v. Semler, 28 Wis. 589; Dudley v. Stiles, 32 Wis. 371; Jones v. Walker, 22 Wis. 220; McWhinne v. Martin, 77 W r is. 182. Prior to the Code there was no re- view except upon the question of power. Fowler v. Colton, i Pin. (Wis.) 331; May v. Crook, i Pin. (Wis). 546. See Bean v. Moore, 2 Pin. (Wis.) 392. 1. Koons v. Price, 40 Ind. 164. 2. Alabama. Section 2833 of the Code provides that the court " must, while the cause is in progress," amend im- perfections and defects of form, " un- less injustice will thereby be done to the opposite party," and "must per- mit the amendment of the complaint by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant, upon such terms and conditions as the justice of the case may require." The only limitation on amendments before the jury have retired is that the form of action must not be changed and there must not be an entire change of parties or a new cause of action. 53 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. (2) For Want of Power. If an amendment is allowed * or re- fused 2 contrary to law, or if leave to amend is denied expressly and solely upon the erroneous ground of want of power, 3 thedis- Mahan v. Smitherman, 71 Ala. 563. With these exceptions the allowance of amendments to a complaint is usu- ally regarded as peremptory. Robin- son v. Darden, 50 Ala. 71; Lansburg v, Cohen, 52 Ala. 180 ; Southern L. Ins. Co. v. Roberts, 60 Ala. 431; Griel v. Solomon, 82 Ala. 85; Ricketts v. Weetien, 64 Ala. 548. See Watkins v. Canterberry, 4 Port. (Ala.) 415; Ash- ley v. Robinson, 29 Ala. 112; Gold- smith v. Picard, 27 Ala. 142; Jones v. Ritter, 56 Ala. 270. But to warrant a reversal for refusal to allow an amend- ment a party must show that he was prejudiced thereby. Sharpe v. Bir- mingham Nat. Bank, 87 Ala. 644; Bea- vers v. Hardie, 59 Ala. 570. As to the remedy by mandamus in case of improper refusal of leave, see Ex parte South, etc., R. Co., 65 Ala. 599- Georgia. Georgia Code, ^ 3479, pro- vides that plaintiffs or defendants may amend " as matter of right." The trial court was reversed for re- fusing to allow amendments in Savan- nah, etc., R. Co. v. Watson, 86 Ga. 795; Strawn v. Kersey, 22 Ga. 586; Smith v. Georgia R., etc., Co., 87 Ga. 764; Fielder v. Collier, 13 Ga. 496; Bright v. Central City St. R. Co., 88 Ga. 535; Colley v. Gate City Coffin Co. (Ga., 1893), 18 S. E. Rep. 817 ; Worrill v. Taylor, 27 Ga. 398.' See also Barrett v. Pascoe (Ga., 1893), 17 S. E. Rep. 117; and before the Code, Martin v. Philips, 4 Ga. 203; Christian v. Penn, 5 Ga. 482; Myrick v. Myrick, 67 Ga. 77i- It seems that refusal of leave will not work a reversal if there was no prejudice. Hadden v. Larned, 87 Ga. 634; Byrd v. Campbell Printing Press, etc., Co. (Ga.), 16 S. E. Rep. 267; Mitchell v. Fullington, 83 Ga. 301 ; White Star Line Steamboat Co. v. Gor- don County, 81 Ga. 47; Gay v. Peacock, 41 Ga. 84. Or if the application was not prop- erly made. Perry v. Watts, 67 Ga. 602. But if the court allows a new cause of action to be introduced, its ruling will be reviewed. McWilliams v. An- derson, 68 Ga. 772; Milburn v. Davis (Ga., 1893), 17 S. E. Rep. 286; Skida- way Shell Road Co. v. O'Brien, 73 Ga. 655; Singer Mfg. Co. v. Armstrong, 91 Ga. 745; Pearson v. Reid, 10 Ga. 580; Pokes v. De Vaughn, 66 Ga. 735; Lamar v. Russel, 77 Ga. 307; Chatta- nooga, etc., R. Co. -v. East Rome Town Co., 89 Ga. 732. 1. Peck v. Smith, 3 Vt. 265; Callen- der -v. Sweat, 14 Vt. 160; Greeley v. Winsor (S. Dak., 1891), 50 N/W. Rep. 630; Dyson v. West, i Har. & ]. (Md.) 567; New York, etc., Milk Pan Assoc. v. Pennington Agricul- tural Works, 89 N. Y. 22, reversing 25 Hun (N. Y.)475; Coulter v. Ameri- can, etc., Express Co., 5 Lans. (N. Y.) 67; Ayer v. Gleason, 60 Me. 207; Herrick v. Osborne, 39 Me. 231; Har- ris v. Mercer, 22 Ind. 329; Hart v. Bowie, 34 La. Ann. 323; Moore v. Lan- caster, Wright (Ohio) 35; Bickett v. Garner, 21 Ohio St. 659. New Cause of Action. In the follow- ing cases the decision was reversed because the amendment introduced a new cause of action : Slater v. Nason, 15 Pick. (Mass.) 345; Guilford v. Adams, 19 Pick. (Mass.) 376; Cumber v. Schoenfeld, 16 Daly (N. Y.) 454; Sheldon v. Adams, 41 Barb. (N. Y.) 54; Zoller v. Kellogg, 66 Hun (N. Y.) 194; Rowell v. Jauvrin, 69 Hun (N. Y.) 305; Shaw v. Bryant (Supreme Ct.), 19 N. Y. Supp. 618; Newall v. Hussey, 18 Me. 249; Snyder v. Harper, 24 W. Va. 206; Edwards v. Cheraw, etc., R. Co., 32 S. Car. 117; Merrill v. Merrill, 92 N. Car. 657; Powell v. Allen, 103 N. Car. 46; Irwin v. Paulett, i Kan. 418. Where an amendment is allowed the burden of proof is upon the exceptant to show that it made a new cause of action. Farr v. Wheeler, 20 N. H. 569- 2. Logan v. Tibbott, 4 Greene (Iowa) 389, a refusal to allow defendant to an- swer an amended petition; Allen v. Bidwell, 35 Iowa, 218. where defend- ant was denied the statutory right to amend as of course; Ewing v. Patter- son, 35 Ind. 326, where the statute providing for leave to amend after de- murrer sustained was imperative. 3. Welch v. Hull, 73 Mich. 47; Bebb v. Preston, 3 Iowa 336; Sangert/. New- ton, 134 Mass. 308: Phoenix Mut. L. Ins. Co. v. Walrath, 53 Wis. 669; Reed 531 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. cretion of the court is not called into operation, and its decision will be reviewed and reversed where the error is prejudicial. (3) Presumptions in Favor of Trial Court. In all cases the pre- sumption is in favor of the legality and propriety of the ruling of the trial court. And error or abuse of discretion must be affirma- tively shown by the record in order to justify an appellate court in reversing a judgment. 1 v. New York, 97 N. Y. 620, reversing 31 Hun (N. Y.) 311 ; McElwain v. Corn- ing, 12 Abb. Pr. (N. Y. Supreme Ct.) 16; White v. Stevenson, 4 Den. (N. Y.) 193; Hochstetter v. Isaacs, 44 How. Pr. (N. Y. Super. Ct.)495, 14 Abb. Pr. N. S.(N. Y.) 235, n.; Cashman v. Reynolds, 25 Abb. N. Cas. (N. Y. Ct. of App.) 392; Oilman v. Emery, 54 Me. 460; Romero v. Luna (N. Mex., 1892), 30 Pac. Rep. 855; McKinnon v. Faulk, 68 N. Car. 279; Jarrett v. Gibbs, 107 N. Car. 303; Henderson v. Graham, 84 N. Car. 496; Gilchrist v. Kitchen, 86 N. Car. 20; Murphy v. Gibbs (N. Car., 1890), 12 S. E. Rep. 272. In Stevens v. Sibbett, 31 Neb. 612; Sibleyz/. Young, 26 S. Car. 415; Rich- mond v. Second Avenue R. Co. (Super. Ct.), 29 N. Y. Supp. 586, and Tighe v. Pope, 16 Hun (N. Y.) 180, the erroneous ground of refusal was that the pro- posed amendment introduced a new cause of action. Ground of Decision, How Ascertained. In order to ascertain whether the court refused leave on the ground of want of power, it seems that the opin- ion of the court may not be resorted to if the order is silent on the subject; and that the opinion can only be exam- ined when the order expresses the ground and the expression is coupled with phrases that make doubt. Fisher v. Gould, 81 N. Y. 228. In McElwain v. Corning, 12 Abb. Pr. (N. Y. Supreme Ct.) 16, the court glanced at the opinion. Where a referee denied an amend- ment which was objected to on the ground of want of power, but no ground for his ruling was stated in his decision, it was presumed to have been denied merely in the exercise of his discretion. Haight v. Littlefield, 71 Hun (N. Y.) 289. Compare Zimmer- man v. Amaker, 10 S. Car. 101. 1. Ohio. Clark v. Clark, 20 Ohio St. 128; Brock -v. Bateman, 25 Ohio St. 609. Kansas. Kansas Farmer Mut. F. Ins. Co. v. Amick, 37 Kan. 73; Bying- ton v. Saline County, 37 Kan. 654. Florida. Mitchell v. Gotten, 3 Fla. 158; Neal v. Spooner, 20 Fla. 38. Indiana. Grand Rapids, etc., R. Co. v. Ellison (Ind., 1888), 18 N. E. Rep. 507; Darrell v. Hilligoss, etc., Gravel Road Co., 90 Ind. 264; Louisville, etc., R. Co. v. Hubbard, 116 Ind. 193; Citizens' State Bank v. Adams, 91 Ind. 280; State v. Peackmo, 8 Blackf. (Ind.) 246; Adams v. Main, 3 Ind. App. 232; Levy v. Chittenden, 120 Ind. 37. Alabama. Mahan v. Smitherman, 71 Ala. 563; Odorn v. Shackleford, 44 Ala. 331; Mock v. Walker, 42 Ala. 668. Wisconsin. Lander z\ Hall, 69 Wis. 326; Patten Paper Co. v. Kaukauna Water Power Co. 79 Wis. 33. Other States. Skagit R., etc., Co. v. Cole, 2 Wash. 57; Suber v. Chandler, 28 S. Car. 382; Singer Mfg. Co. v. Doggert, 16 Neb. 609; Buckley v. How, 86 Cal. 596 ; Waterman -v. Hall, 17 Vt. 128; State v. Keokuk, 18 Iowa 388; Allen v. Ranson, 44 Mo. 263; Dougan v. Turner, 51 Minn. 330; Penobscot Boom Corp. v. Baker, 16 Me. 233. Showing Required in Trial Court. It should appear of record that the party complaining presented to the trial court by affidavit or otherwise suf- ficient grounds for a different ruling. Garrison v. Goodale, 23 Oregon 307; Hay v. State, 58 Ind. 337; Sandford Tool, etc., Co. v. Mullen, i Ind. App. 204; Hoffman v. Rothenberger, 82 Ind. 474; Martinsville v. Shir- ley, 84 Ind. 546; Judd v. Small, 107 Ind. 398; Deweyt/. State, 91 Ind. 173; Burns v. Fox, 113 Ind. 205; Meyer v. State, 125 Ind. 335; Child v. Swain, 69 Ind. 230; Omaha, etc., R. Co. v. Mos- chel, 38 Neb. 281; Ruege v. Gates, 71 Wis. 634; Canfield v. Bates, 13 Cal. 606; Nevada County, etc., Canal Co. v. Kidd, 37 Cal. 282; Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123; Barker v. Walbridge, 14 Minn. 469. Sufficiency of Record. The amend- ment made or proposed must appear in the record. Shaw v. Binkard, 10 Ind. 227; Rooker v. Wise, 14 Ind. 276; Barnett v. East Tennessee, etc., R. Co., 532 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. (4) Harmless Error. The allowance or refusal of an amend- ment, whether the action of the court is contrary to law 1 or merely an abuse of discretion, 2 will not constitute reversible error if the party complaining is not prejudiced thereby ; and a refusal to allow an amendment on the ground of a supposed lack of power will not be disturbed if it was nevertheless correct from the standpoint of discretion. 3 Circumstances Rebutting Prejudice. Where a party seeks to have the action of the trial court reversed on error for allowing his op- ponent to amend, his omission to ask for delay on account of the amendment is a cogent circumstance indicating that he was not prejudiced thereby. 4 (5) Objection and Exception. In order to present any question on appeal touching the action of the trial court with reference to amendments, the record must show that an objection was made 5 87 Ga. 766, following Sibley v. Mutual Reserve Fund L. Assoc., 87 Ga. 738; Martin v. Thompson, 62 Cal. 618; Jessup v. King, 4 Cal. 331; Harvey v. Spaulding, 7 Iowa 423; Schumann v. Mark, 35 Minn. 379; McCain v. Louis- ville, etc., R. Co. (Ky., 1892), 18 S. W. Rep. 537- The insufficiency of an amended petition cannot be shown when the original petition is not copied in the transcript. Huffaker v. Monticello Nat. Bank, 13 Bush (Ky.) 644. 1. Cox -v. Lacey, 3 Litt. (Ky.) 334; Robertson v. Robertson, 9 Daly (N. Y.) 44; Ansonia Brass, etc., Co. v. Gerleck (C. PL), 28 N. Y. Supp. 546; National Steamship Co. v. Sheahan, 122 N. Y. 461; Dexter v. Ivins, 133 N. Y. 551; Wilson v. Stewart, 69 Ala. 302. 2. Shadburne v. Daly, 76 Cal. 355; Beronio v. Southern Pac. R. Co., 86 Cal. 415; Bulwer Consolidated Min. Co. v. Standard Consolidated Min. Co., 83 Cal. 613; Southern Pac. R. Co. v. Purcell, 77 Cal. 69; Burr v. Neuden- hall, 49 Ind. 496; Kennedy v. Brown, 50 Mich. 336; State v. Keokuk, 18 Iowa 388; Allison v. Barrett, 16 Iowa 278; Schneider v. Hosier, 21 Ohio St. 109; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345 ; Richie v. Levy, 69 Tex. 133; Baxter?'. State, 15 Wis. 488; Monaghan v. School Dist. No. i, 38 Wis. 100; Sharpe v. Birmingham, 87 Ala. 644; Golden i'. Conner, 89 Ala. 598; Roberts v. Fleming, 31 Ala. 683 ; Blewett v. Front St. Cable R. Co., 51 Fed. Rep. 625; Kellogg v. Gilfillan (Pa., 1887), 10 Atl. Rep. 888; Rehfuss v. Gross, 108 Pa. St. 521; Middletown Mfg. Co. v, Philadelphia, etc., R. Co., 145 Pa. St. 443; Diehl v. Adams Co. Mut. Ins. Co., 58 Pa. St. 443; Homers. Marietta, 135 Pa. St. 418; Blakemore v. Wood, 3 Sneed (Tenn.) 470; Tennessee Bank v. Skillern, 2 Sneed (Tenn.) 698. 3. Polhemus v. Ann Arbor Sav. Bank, 27 Mich. 45. See also Monaghan v. Agricultural F. Ins. Co., 53 Mich. 238; Boettcher v. Colorado Nat. Bank, 15 Colo. 16. 4. Bunyan v. Loftus (Iowa, 1894), 57 N. W. Rep. 685; Walsh v. McKeen, 75 Cal. 519; Richardson v. Wallace, 39 S. Car. 216; Powers v. Fox (City Ct.), ii N. Y. St. Rep. 651; Klemm v. New York Cent., etc., R. Co. (Su- preme Ct.), 28 N. Y. Supp. 861; Frank- furter v. Home Ins. Co. (City Ct.), 26 N. Y. Supp. 81; Lester v. Thompson, 91 Mich. 245; Wolscheid v. Thorne, 76 Mich. 265; Burr v. Mendenhall, 49 Ind. 496; Union Pac. R. Co. v. Brod- erick, 35 Neb. 739; Bussey v. Roths- child, 27 La. Ann. 316. See also Meyer v. State, 125 Ind. 335. 5. Robertson v. Springfield, etc., R. Co., 21 Mo. App. 633; Kennedy v. Brown, 50 Mich. 336 ; Bruns v. Schrieber, 48 Minn. 366; Bryan v. Wilson, 27 Ala. 208; Stewart v. Goode, 29 Ala. 476; Lea v. Hopkins, 7 Pa. St. 492; Pass -v. McKea, 36 Miss. 143. Specific Objection Required. The grounds of the objection should be stated. Reynolds v. Dismuke, 48 Ala. 209; Parsons Water Co. v. Hill, 46 Kan. 145. Waiver of Objection. By the accept- ance of josts paid as a condition of amending the complaint, the defend- ant waives the objection thereto upon 533 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. in seasonable time, 1 and exceptions taken to the adverse ruling. 2 (6) Method of Review. The method of bringing orders allow- ing or refusing amendments before an appellate court for review is usually by appeal from or error to the final judgment. 3 But a the ground of want of power. Smith v. Savin, 69 Hun (N. Y.) 311, 23 N. Y. Supp. 568. Smith v. Rathbun, 75 N. Y. 122, applies the same principle. See also infra, 19, b. 1. The objection to the allowance of an amendment must be made at the same term. Felkel v. Hicks, 32 Ala. 25; Bassett v. Salisbury Mfg. Co., 28 N. H. 438; Sutherland v. Kittridge, 19 Me. 424. It conjes too 'ate when made for the first time in a motion for a new trial. Hooks v. Hays, 86 Ga. 797. 2. Browne v. Moore, 32 Mich. 254; Holliday v. Mansker, 44 Mo. App. 465; Peck v. Smith, 3 Vt. 265; Mock v. Walker, 42 Ala. 668; Blair v. Miller, 42 Ala. 308; Jarman v. McMahon, 37 Ala. 431; Hooks v. Hays, 86 Ga. 797; Pettis v. Campbell, 47 Ga. 596; Pe- nobscot Boom Corp. v. Baker, 16 Me. 233; Gilman v. Emery, 54 Me. 460; Sutherland v. Kittridge, 19 Me. 424; Healy v. Aultman, 6 Neb. 349; Sin- clair v. Western N. Car. Co., HI N. Car. 507; Durham v. Fechheimer, 67 Ind. 35; Evansville, etc., R. Co. v. Murphy, 59 Ind. 515; Burne.tt v. Ab- bott, 51 Ind. 254; Lammers v. Balfe, 41 Ind. 218; Vawter v. Brown, 20 Ind. 280; Sandford Tool, etc., Co. v. Mul- len, i Ind. App. 204; Lowrey v. Reef, i Ind. App. 244; Wilday v. Wight, 71 111. 376; Wilson v. Jamieson, 7 Pa. St. 126; Pennsylvania R. Co. v. Keller, 67 Pa. St. 305; Gilbank v. Stephenson, 31 Wis. 598; Pelham v. State Bank, 4 Ark. 202; Brock v. Bateman, 25 Ohio St. 609; Clark v. Clark, 20 Ohio St. 128; Wallace v. Baisley, 22 Oregon, 572. A mere Clerical Error in the exception will not vitiate it. Schuessler v. Wil- son, 56 Ala. 510. Formal Exceptions, When Unnecessary. In Cumber v. Schoenfeld, 16 Daly (N. Y.) 454, it was held that a formal exception is not indispensable in order to authorize a review by the general term [citing Maier v. Homan, 4 Daly (N. Y.) 168]; Maudeville v. Marvin, 30 Hun (N. Y.) 287; Standard Oil, etc., Co. v. Amazon Ins. Co., 79 N. Y. 5 IO I Hamilton v. Third Ave. R. Co., 53 N. Y. 27; Lattimer v. Hill, 8 Hun (N. Y.) 171; Ackart v. Lansing, 6 Hun (N. Y.) 476. Waiver of Exception. In Gale v. Foss, 47 Mo. 276, where defendant excepted to an order striking out his original and amended answer, it was held that he waived the exception by answering over. 3. Sinclair v. Western N. Car. Co., in N. Car. 507; Denton v. Stephens, 32 Miss. 194, holding that error in al- lowing an amendment cannot be cor- rected by a motion to dismiss the suit. In Minnesota an order allowing an amendment is not appealable. It may be reviewed on appeal from the judg- ment or from an order upon a motion for a new trial. Winona v. Minnesota R. Const. Co., 25 Minn. 328, 27 Minn. 415. Upon an appeal from an order refus- ing a new trial, an order of the court allowing an amendment of the plead- ings previous to the commencement of the trial, and not as a part of it, can- not be reviewed. Winona v. Minne- sota R. Const. Co., 27 Minn. 415. California. An order striking out a portion of the complaint, not being itself appealable, may be reviewed on appeal from the final judgment. Swain v. Burnette, 76 Cal. 299. New Trial by Trial Court. In Peters v. Foss, 16 Cal. 357, and Les- trade v. Barth, 17 Cal. 285, the Su- preme Court affirmed a decision of the lower court granting a new trial for its own error of discretion in refusing to amend an answer. Order Not Involving Merits. An order allowing an answer in a divorce suit to be amended in a matter relat- ing to community property, as it does not involve the merits of the case, is not subject to review on appeal from the judgment entered. Sharon v. Sharon, 77 Cal. 102. Certiorari. Where plaintiff was al- lowed to amend his complaint in a case in the Superior Court appealed from a justice of the peace, it was held that certiorari would not lie to review it. Kitts v. Nevada County Ct. F 62 Cal. 203. 534 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. different or additional remedy is sometimes authorized under statutes defining appealable orders or judgments. 1 5. In Respect of Parties a. MISNOMER. At Common Law the power to amend in case of a misnomer depends, not upon the question whether the amendment changes the name, but whether or not it changes the party. If it only cures a mistake in the name of the party by or against whom the suit is prosecuted, it may be made; but if it introduces a different party it is inadmis- sible. 2 1. New York Orders Affecting "Sub- stantial Rights." An order of the County Court granting a motion to amend an answer affects a "substan- tial right " and is appealable. New v. Aland, 62 How. Pr. (N. Y. Supreme Ct.) 185. So an order of a special term allowing an amendment to the complaint by inserting an entirely new cause of action, Sheldon -v. Adams, 41 Barb. (N. Y.) 54 ; and an order allowing a defendant to put in a sup- plemental answer setting up a new defense which, if established, will be fatal to the plaintiff's action. Har- rington v. Slade, 22 Barb. (N. Y.) 161. See also Union Bank v. Mott, 19 How. Pr. (N. Y. Supreme Ct.) 115; Bowman v. De Peyster, 2 Daly (N. Y.) 203; Travis v. Barger, 24 Barb. (N. Y.) 614; Woodruff v. Dickie, 5 Robt. (N. Y.) 619; Union Bank v. Bassett, 3 Abb. Pr. N. S. (N. Y. Supreme Ct.) 359; Kissam v. Roberts, 6 Bosw. (N. Y.) 154; Sleeman v. Hotchkiss (Supreme Ct.), 14 N. Y. Supp. 78; Gowdy v. Poullain, 2 Hun (N. Y.) 218; Brady v. Cassidy (Supreme Ct.), 13 N. Y. Supp. 824. But the exercise of discretion in allowing or refusing amendments will not in general be reviewed. Gould v. Rumsey, 21 How. Pr. (N. Y. Supreme Ct.) 97; McCarty v. Edwards, 24 How. Pr. (N. Y. Supreme Ct.) 236; Dennis v. Snell, 54 Barb. (N. Y.) 411; Saltus v. Genin, 19 How. Pr. (N. Y. Supreme Ct.) 233; Bailey v. Johnson, i Daly (N. Y.), 61 ; Binnard v. Spring, 42 Barb. (N. Y.)47o; Phincle v. Vaughan, 12 Barb. (N. Y.) 215; Sayre v. Frazer, 47 Barb. (N. Y.) 26. Reviewing Decision of Referee. It seems that the proper mode of review- ing the decision of a referee allowing an amendment is by exception there- to and appeal from the judgment. Quimby v. Claflin, 77 N. Y. 270; Zol- ler v. Kellogg, 66 Hun (N. Y.) 194; Shaw v. Bryant (Supreme Ct.), 19 N. Y. Supp. 618. Where a referee refuses to allow an amendment, on the ground of a sup- posed want of power, the court will review the decision on motion. Hochstetter v. Isaacs, 44 How. Pr. (N. Y. Super. Ct.) 495, 14 Abb. Pr. N. S. (N. Y.) 235, note. Order Not Affecting Final Judgment. An order made in an action tried be- fore a judge without a jury, denying a motion to amend an answer after the filing of his decision, does not affect the final judgment, and is not appealable under 1316 of the Code. Callanan v. Gilman, 52 N. Y. Super. Ct. 112. In Wisconsin an order refusing to strike an amended complaint from the file is appealable. Kewaunee County v. Decker, 34 Wis. 378. In Iowa a motion to strike an amended petition from the file is ap- pealable under 3614, par. 4, of the Code, which secures an appeal from an "intermediate order involving the merits and materially affecting the final decision." Bicklin v, Kendall, 72 Iowa 492. In South Dakota an order allowing an amendment of the complaint after judgment, and satisfaction without vacating the judgment, was held to be appealable, as it involved the merits of the case. Greeley v. Winsor (S. Dak., 1891), 50 N. W. Rep. 630. In Michigan an allowance of an amendment by a justice of the peace after the cause was submitted cannot be reviewed on special appeal, as it does not involve a jurisdictional ques- tion. Webster v. Williams, 69 Mich. 135. In Massachusetts an order of a justice of the Supreme Judicial Court on a probate appeal, declining to allow an amendment to an issue of fact framed for the jury, cannot be revised by bill of exceptions, but only by appeal. Ogden v. Greenleaf, 143 Mass. 349. 2. Elliott v. Clark, 18 N. H. 421, where the plaintiff was allowed to 535 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Modern statutes. Specific or general provisions in modern statutes are usually held to confer ample authority to make such amend- ments, but ordinarily with the limitation just stated. 1 amend by striking out his Christian name "Lafayette" and inserting in- stead thereof " Benjamin F.," the parties being the same. Chief Justice Parker deduces the rule stated in the text from a consid- eration of the cases cited in the fol- lowing opinion : " Thus, in Poitvin v. Tregeagle, 2 Ld. Raym. 771, it was held that the Christian name of the plaintiff could not be amended by in- serting Peter for John. So it was held that a declaration in favor of Emerson & Godfrey could not be amended by inserting, instead, John Emerson, as the plaintiff. Emerson v. Wilson, n Vt. 359. This was treated as an amendment changing the parties. But in Moulsworth's Case, Comb. 287, Richard for Robert was amended by the bill on file, after judgment. So Harvert for Harbert was amended after issue and the cause entered. Comb. 4. In Scull v. Briddle, 2 Wash. (U. S.) 200, upon motion in arrest of judgment, Briddle was inserted for Biddle in the declaration. There is another class of cases relating to bail. In Bingham v. Dickie, 5 Taunt. 814, the court refused to allow a clerical error in spelling the plaintiff's name in the bail-piece to- be amended without the consent of the bail, holding Tar- bart for Tabart a fatal variance. But the bail-piece was amended by a change of name in Andrews v. Noah, I Bos. & P. 31, and in Croft v. Coggs, 4 Moore 65, 16 E. C. L. 363; and a capias was amended by a similar change in Stevenson -v. Danvers, 2 Bos. & P. 109. A defendant was misnamed in the declaration, being lar case; McLaughlin v. Wilks, 42 Mich. 553, changing plaintiff's name from Dilks to Wilks; McEvov v. Bock, 37 Minn. 402, an amendment allowed after the trial; Tyron v. Butler, 9 Tex. 553, and Tousey v. Butler, 9 Tex. 525, amending the Christian name, in the latter case, after plea in abatement; Dewey v. McLain, 7 Kan. 126, correction of Christian name; Merriam z/. Wolcott, 61 How. Pr. (N. Y. Supreme Ct.) 377, the plaintiff's name having been changed by mar- riage pending the suit; Glick v. Hart- man, 10 Iowa 410; Fink v. Manhattan R. Co., 15 Daly (N. Y.) 479, changing the initial letter of plaintiff's middle name; Abshive v. Mather, 27 Ind. 381; South & North Ala. R. Co. v. Small, 70 Ala. 499, correcting the Christian name; Smith v. Plank-road Co., 30 Ala. 650, changing the name of the plaintiff corporation; Beggs v. W T ellman, 82 Ala. 391, inserting full Christian name in place of initial after plea in abatement. See also Moore v. Lewis, 76 Mich. 300; Bauman v. Grubbs, 26 Ind. 419; Ferguson v. Ramsey, 41 Ind. 511; Paine v. Water- loo Gas Co., 69 Iowa 211. In Woodson v. Law, 7 Ga. 105, the Christian name of the plaintiff was changed from William to James. Formerly the Christian name of a plaintiff could not be changed in Penn- sylvania. Horbach v. Knox, 8 W. & S. (Pa.) 30. But misnomer of parties is now amendable in case of mistake. Porter v. Hildebrand, 14 Pa. St. 129; Wood v. Philadelphia, 27 Pa. St. 502, holding it reversible error to refuse leave to amend in a proper case; called John instead of George, and Wood v. Philadelphia, 27 Pa. St. 5O2 i holding that the fact of mistake may be shown by any sufficient evidence; Ward v. Stevenson, 15 Pa. St. 21, holding that the mistake need not be proved by the attorney who made it; it was held to be a fatal variance, and the plaintiff was nonsuited. Waterbury v. Mather, 16 Wend. (N. Y.) 611. But, on the other hand, it was held that a declaration by a wrong Christian name is no ground and Horbach v. Knox, 6 Pa. St. 377, for a nonsuit. Boughton v. Frere, 3 holding that the mistake may be Camp. N. P. 29; Stafford v. Bolton, I shown by ex part e affidavit. Rangier v. Hummel, 37 Pa. St. 130; Leonard v. Parker, 72 Pa. St. 236; Wilson v. Mechanics' Sav. Bank, 45 Pa. St. Bos. & P. 40." 1. Misnomer of Plaintiffs was cured by amendment in Merrill v. Kalamazoo, 35 Mich. 211, a change in the official ti- hold that the fact of mistake will be tie of plaintiffs; Berrien County Treas- presumed. urer v. Bunbury, 45 Mich. 79, a simi- Leave to Amend Denied. In Dulany 536 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. b. MlSDESCRIPTION OF PLAINTIFF CHANGING NOMINAL PLAINTIFF. Under the statutes of amendment it is the general rule that the plaintiff may be changed by amendment if the real parties in interest and the essential elements of the controversy remain the same. 1 v. Norwood, 4 Har. & M. (Md.) 497, leave to amend the Christian name of the plaintiff after the jury were sworn was refused. Misnomer of Defendants was cured by amendment in the following cases : Cheshire v. Milburn Wagon Co., 89 Ga. 249, where the omission of the Christian name of one of the defend- ants was corrected. Nelson v. Bar- ker, 3 McLean (U. S.) 379; Bullard v. Nantucket Bank, 5 Mass. 99; Heslep v. Peters, 4 111. 45, amendment al- lowed after demurrer to plea in abate- ment for misnomer, by withdrawing the demurrer and joining issue on the plea; Parry v. Woodson, 33 Mo. 347, changing defendant's Christian name from Benjamin to Branham; Tuller v. Ginsburg, 99 Mich. 137; Webber v. Bolte, 51 Mich. 113, substituting the full Christian name of the defendant for an initial; Welch v. Hull, 73 Mich. 47, where it was held to be reversible error to refuse leave to amend the Christian name of one of the de- fendants; Fogg v. Greene, 16 Me. 282, amending the Christian name on the trial; Thomson v. Wilson, 26 Iowa 120, after verdict and pending motion in arrest; Arbuckle v. Bowman, 6 Iowa 70, where " Bowman " was sub- stituted for " Bauman;" Farris v. Mer- ritt, 63 Cal. 118, inserting defendant's true name where he had been sued under a fictitious name; McDonald v. Swett, 76 Cal. 257, after a default, where defendant was sued as "Sweet ;" Porter v. Hildebrand, 14 Pa. St. 129; New Albany, etc., R. Co. v. Laiman, 8 Ind. 212; New Albany, etc., R. Co. v. Chamberlain, 8 Ind. 278; Weavers. Jackson, 8 Blackf. (Ind.) 5, changing defendant's Christian name from " William " to " Boston," after plea in abatement for misnomer; Griel v. Sol- omon, 82 Ga. 85, striking out the middle initial, and reversible error to refuse leave ; Singer Mfg. Co. v. Green- leaf (Ala., 1893), 14 So. Rep. 109, where defendant was originally sued as the " Singer Sewing Machine Co.;" New York, etc., Contracting Co. v. Meyer, 51 Ala. 325; Maxey z/. Strong, 53 Miss. 280. A declaration against the Chatta- nooga, Rome & Carrollton R. Co. was amended by substituting " Columbus" for "Carrollton," Chattanooga, etc., R. Co. v, Jackson, 86 Ga. 676; like- wise by substituting "railroad com- pany" for " railroad," Rome R. Co. v. Sullivan, 14 Ga. 277, and " railway company" for "railroad company," East Tennessee, etc., R. Co. v. Ma- honey, 89 Tenn. 311; Propst v. Geor- gia Pac. R. Co. (Ala., 1888), 3 So. Rep. 764. Misnomer of a defendant corpora- tion was also corrected in Johnson v. Cent. R. Co., 74 Ga. 397, and Stanton v. Proprietors, etc., 47 Vt. 172, the for- mer case being decided under a statute authorizing an amendment "in the Christian or surname," which was held to include the name of a corpora- tion. But another company could not be substituted under the guise pf correcting a misnomer. Nashville, etc., R. Co. v. Edwards, 91 Ga. 24; Western R. Co. v. McCall, 89 Ala. 375. See also Lyons v. Donges, i Disney (Ohio) 142. Christian and Surname. A statute al- lowing an amendment in the Christian name or surname will authorize an amendment of an error in both. Ward v. Stevenson, 15 Pa. St. 21. Only in Furtherance of Justice. A mistake in the name of a party cannot be cured by amendment where the right of third parties will be preju- diced thereby. Fullerton z/. Campbell, 25 Pa. St. 345. Misnomer of Parties in Process. See infra, IV, I, e. 1. Dixon v. Dixon, 19 Iowa 512; Wood v. Lane, 84 Mich. 521; Cragin v. Gardner, 64. Mich. 399; Kron v. Smith, 96 N. Car. 389; Granby v. Sawyer, 2 Hawks (N. Car.) 61; Buflard v. Johnson, 65 N. Car. 436; Lewis v. Austin, 144 Mass. 383; Winch v. Hos- mer, 122 Mass. 438; Clawson v. Cone, 2 Handy (Ohio) 67; Heckemann v. Young, 18 Abb. N. Cas. (N. Y. Su- preme Ct.) 196; Boudreau v. Eastman, 59 N. H. 467; Atchison v. Twine, 9 Kan. 350; Price v. Wiley, 19 Tex. 142; Lilly -v. Tobbein, 103 Mo. 477; Challe- 537 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. When a party sues in his own right he may, if the facts war- rant it, amend his complaint so as to make the suit stand in a representative capacity ; * or conversely, if he sues as a represen- nor v. Niles, 78 111. 78; Neal v. Spooner, 20 Fla. 38; Farrier v. Schroe- der, 40 N. J. L. 601 ; Rawles v. People, 2 Colo. App. 501; Hamill -v. Ashley, u Colo. 180; Druckenmiller v. Young, 27 Pa. St. 97. In Dixon v. Dixon, 19 Iowa 512, and Hodges v. Kimball, 49 Iowa 577, a suit was brought in the name of a partner upon a cause of action belong- ing to the firm, and an amendment was allowed by inserting the name of the firm. In Lewis v. Locke, 41 Vt. n, a suit was brought in the name of a firm, and the names of the partners were inserted by amendment. Likewise where the suit was brought in the name of a liquidator of the firm. Est- lin v. Ryder, 20 La. Ann. 251. In Lake Erie, etc., R. Co. v, Boswell (Ind., 1894), 36 N. E. Rep. 1103, the name of a town was substituted for that of its trustees as plaintiff, the court citing Burk v. Andis, 98 Ind. 59. In Wood v. Lane, 84 Mich. 521, a suit upon an insurance policy, the heirs of the deceased were substi- tuted for an administrator. So in Teutonia L. Ins. Co. v. Mueller, 77 111. ?2. Where a suit is brought in the name of an infant the latter may on coming of age be made a party to the action. Chisolm v. Skillman, 2 La. 146. Substituting Beneficiary. The name of one for whose use the action is brought may be substituted for that of the nominal plaintiff where the legal right of action is shown to be in the former. McLewis v. Furger- son. 59 Ga. 644; Wilson v. First Pres- byterian Church, 56 Ga. 554; Childers v. Adams, 42 Ga. 352; Glenn v. Black, 31 Ga. 393; Whittaker v. Pope (Ga.), 2 Woods (U. S.) 463 ; Miller v. Pol- lock, 99 Pa. St. 202; Dwyer v. Ken- nemore, 31 Ala. 404; Montague v, King. 37 Miss. 441; Martel . Somers, 26 Tex. 551; Fenwick v. Phillips, 3 Met. (Ky.) 87; Buckland v. Green, 133 Mass. 421. See also Johnson v. Mar- tin, 54 Ala. 271; McColley v. Collins, 5 Harr. (Del.) 391. But not where the effect would be to deprive the defendant of a just set-off. Morrow v. Merchants', etc., Bank, 35 Ga. 267. And where the amendment is properly allowed there should be another amendment striking out the name of the nominal plaintiff. Richmond, etc., R. Co. v. Bedell, 88 Ga. 591. Substituting Holder of Legal Title. One having the legal title to sue may be substituted as plaintiff suing for the use of the equitable owner who was the original plaintiff. Estes v. Thompson, 90 Ga. 698; Nicholson v. Harris, 90 Ga. 257; Lewis v. Austin, 144 Mass. 383; Walthour v. Spangler, 31 Pa. St. 523; Boles v. Jessup, 57 Ark. 469; and Costello v. Crowell, 134 Mass. 280, where the plaintiff suing as the endorsee of a non-negotiable note was allowed to substitute the name of the payee as plaintiff. American Union Tel. Co. v. Daughtery, 85 Ala. 191; Harris v. Plant, 31 Ala. 659; Downey v. Garard, 24 Pa. St. 52. See also Kaylor v. Saffner, 24 Pa. St. 489. Entirely New Plaintiff. In Wood v. Metropolitan L. Ins. Co., 96 Mich. 437, it was held that an assignee of the plaintiff could not be made a party plaintiff, because it was a change of the real parties in inter- est. Contra, Talbert v. Becton, in N. Car. 543. See also, as to making en- tirely new plaintiffs, infra 5, h. Laches in Applying for Leave. Leave to amend by substituting the name of another person in the place of one for whose use the plaintiff sues may be refused at a late stage of the case. Burrus v. Fisher, 27 Miss. 418. Actual Amendment, When Unnecessary. In Illinois it is not the practice, where the representatives of a de- ceased party are substituted, to amend by actually inserting their names in the declaration. Hoes v. Van Alstyne, 20 111. 201. 1. Hunt v. Collins, 4 Iowa 56; Agee v, Williams, 30 Ala. 636; Crimm v. Crawford, 29 Ala. 623; Farrow v. Bragg, 32 Ala. 260 ; Longmire v. Pilkington, 37 Ala. 296; Lucas v. Pitt- man, 94 Ala. 616; Humphries v. Daw- son, 38 Ala. 199; Ikelheimer v. Chap- man, 32 Ala. 676; McCoy v. Watson, 51 Ala. 466; Reed v. Cooper, 30 Kan. 574; Hines v, Rutherford, 67 Ga. 606; Smith v. Pinney, 86 Mich. 484; Mor- ford v. Dieffenbacker, 54 Mich. 593; 533 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. tative, he may be allowed to amend by declaring in his individual capacity. 1 So a misdescription of the plaintiff, 2 or of the repre- sentative or other capacity in which the plaintiff sues, is amend- able. 3 But a proceeding in the name of neither a natural nor an Wiley v. Lovely, 46 Mich. 87; Buffing- ton v. Blackwell, 52 Ga. 129; Smith v. Anderson, 39 Tex. 496; Anderson v. Brock, 3 Me. 243. See also Smith v. Proctor, i Sandf. (N. Y.) 72; Flower v. Garr, 20 Wend. (N. Y.) 668; Megar- gell v. Hazleton Coal Co., 8 W. & S. (Pa.) 342. A coplaintiff with- a minor may amend by describing himself as next friend of the minor. Sick v. Michi- gan Aid Assoc., 49 Mich. 50. A declaration in the name of a guardian may be amended by making the ward plaintiff suing by her next friend, who is the guardian. Morford v. Dieffenbacker, 54 Mich. 593; Wiley v. Lovely, 46 Mich. 87; Slater v. Nason, 15 Pick. (Mass.) 345; Perine v. Grand Lodge, 48 Minn. 82; and Van Pelt v. Chattanooga, etc., R. Co., 84 Ga. 706, were cases of a similar nature. See also Greenman v. Cohee, 61 Ind. 201. But Fowlkes v. Memphis, etc., R. Co., 38 Ala. 310, is an author- ity to the contrary. In Hagerty v. Hughes, 4 Baxt. (Tenn.) 222, it was held that where a husband sues in his own name as such and afterwards amends so as to claim as administrator for the use of his children, it is an abandonment of the original suit and operates as a discon- tinuance. 1. Heard v. Lockett, 20 Tex. 162; Payne v. Furlow, 29 La. Ann. 160; Bragdon v. Harmon, 69 Me. 29. See also Bryant v. Helton, 66 Ga. 477. If the declaration leaves it uncertain whether plaintiff is suing individually or as a representative, an amendment is proper. Wolscheid v. Thome, 76 Mich 265. A plaintiff suing as executor cannot amend so as to sue in his own right on a distinct and separate title. Phil- lips v. Melville, 10 Hun (N. Y.) 211. In Alabama a plaintiff cannot amend by striking out the name of the person for whose use the suit is instituted. Teer v. Sandford, i Ala. 525; Jemison v. Planters', etc., Bank, 23 Ala. 168. Compare Lucas v. Pittman, 94 Ala. 616. But the statutory action in the nature of ejectment is an exception. Caldwell v. Smith, 77 Ala. 157. In Mississippi the name of the usee may be struck out. Anderson v. Rob- ertson, 32 Miss. 241 ; Archer v. Stamps, 4 Smed. & M. (Miss.) 352. So in Georgia. ytna Ins. Co. v. Sparks, 62 Ga. 187. 2. In a suit by a foreign corporation an omission to aver its corporate character may be amended. Southern L. Ins. Co. v. Roberts, 60 Ala. 431. See also Jemison v. Planters', etc., Bank, 23 Ala. 168; St. Louis, etc., R. Co. v. Camden Bank, 47 Ark. 541. Members of a corporate board suing in their own names on a corporate right may amend by describing them- selves as a corporation. M. E. Church z>. Town, 49 Vt. 29; Shoudy v. School Directors, 32 111. 290; Yocum v. Waynesville, 39 111. 220. Plaintiff suing on a note may amend by adding averments that he sues not as a payee, but as assignee or owner. Long v. Patterson, 51 Ala. 414. Plaintiff may amend by describing himself as " doing business under the name of " another person. Hathaway v. Sabin, 61 Vt. 608. Plaintiffs suing as heirs of B. may amend by claiming as the heirs of A. Reams v. Spann, 28 S. Car. 530. An infant suing in his own name may amend so as to sue by guardian. Sabine v. Fisher, 37 Wis. 376. A suit by a voluntary association cannot be amended into a suit under the name by which it was subsequent- ly incorporated. Marsh River Lodge v. Brooks, 61 Me. 585. 3. Johr v. St. Clair County, 38 Mich. 532 ; O'Connell v. Schwanabeck, 76 Mich. 517 ; Donovan v. Halsey Fire Engine Co., 58 Mich. 38; Rutherford v. Hobbs, 63 Ga. 243 ; Van Pelt v. Chattanooga, etc., R. Co., 89 Ga. 706; Tumlin v. Quarles, 26 Ga. 395; Humphries v. Dawson, 38 Ala. 199. See also Cannon v. Mathis, 10 Heisk. (Tenn.) 575- One suing as an heir at law may amend so as to sue as executor. Hines v. Rutherford, 67 Ga. 606. Or, suing as executor may amend by declaring as administrator. Risley v. Wight- man, 13 Hun (N. Y.) 163. Plaintiff suing as agent may strike 539 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. artificial person is beyond the reach of amendment. 1 C. MlSDESCRIPTION OF DEFENDANT NOMINAL CHANGE. A misdescription of the defendant, 2 or of the capacity in which he is sued, may be corrected by amendment ; 3 and the party legally out the descriptive words. McDuffie v. Irvine, 91 Ga. 748. Plaintiff suing as receiver of a cor- poration may amend by substituting the name of the corporation. Chand- ler v. Frost, 88 111. 559. Plaintiff suing as executor may amend by correcting the name of the testator. Benjamin v. Boyce, 2 Harr. (Del.) 316. Or by describing himself as administrator. Risley v. Wight- man, 13 Hun (N. Y.) 163. Where an action on an administra- tion bond was brought in the name of the administrator de bonis non instead of in that' of the state on his relation, an amendment making the proper plaintiff was allowed. Grants. Rogers, 94 N. Car. 755. Harris v. Plant, 31 Ala. 639; Judge of Probate v. Jackson, 58 N. H. 458; State v. Shelby, 75 Mo. 482; Waterman v. Dockray, 79 Me. 149; Clement v. Com., 95 Pa. St. 107; and Meyer v. State, 125 Ind. 335, were decided on precisely the same principle. But if not amended, the omission is too radical to be corrected in the appellate court under the statute of jeofails. Snyder v. State, 21 Ind. 77; Cutshaw v. Fargo (Ind., 1894), 36 N. E. Rep. 650; Taggart v. State, 49 Ind. 43. A party who sues in the name of another when he might sue in his own name may amend and proceed in his own name. Frank v. Kaigler, 36 Tex. 305. A relator in an action by the state on a trustee's bond against the trustee and his sureties may be permitted to amend his complaint so as to make it an action by the relator as plaintiff against the trustee alone to set aside as fraudulent the defendant's final report. Boyd v. Caldwell, 95 Ind. 392. In an action on -an account between plaintiff and defendant, an amendment alleging that the plaintiff sues as transferee of a third person introduces a different cause of action, and is not allowable. Barren v. Walker, 80 Ga. 121. See also Henry v. Central R. , etc., Co., 89 Ga. 815. 1. Mexican Mill v. Yellow Jacket Mver Min. Co., 4 Nev. 40. 2. Nary v. Henni, 45 Wis. 473. The plaintiff may strike out the description of the defendants as trad- ing in a firm-name. Schollenberger v. Seldonridge, 49 Pa. St. 83. An amendment may be made so as to show that the defendant is a body corporate and sued in that capacity. Alabama Western R. Co. v. Sistrunk, 85 Ala. 352. An amendment by which the defend- ant was described as "executor of J. B.,Jr.," instead of "administrator of J. B.," was allowed. Ballou v. Til- ton, 52 N. H. 605. See also McElwain v. Corning, 12 Abb. Pr. (N. Y. Supreme Ct.) 16; Proctor v. Andrew, i Sandf. (N.Y.)TO. A declaration alleging that "the defendant testator, etc., being in- debted, etc., promised," may be answered by declaring that " the in- testate, etc., promised." Eaton v. Whitaker, 6 Pick. (Mass.) 465. 3. Where a suit is brought against " defendants, receivers " of a corpora- tion, etc., an amendment may be made charging them "as receivers," etc. Eddy -v. Powell, 49 Fed. Rep. 814. If a defendant is sued in his repre- sentative character, the complaint may be amended so as to stand against him as an individual. Lucas v. Pittman, 94 Ala. 616, overruling Christian *v. Morris, 50 Ala. 585, and Taylor v. Taylor, 43 Ala. 649; and holding Kirkman v. Benham, 28 Ala. 501, inapplicable. Jemison v. Planters', etc., Bank, 23 Ala. 168, was decided before the Code. Under the Connecticut Practice Act, ^ 12, 15, and 16, a complaint against the defendant as administrator can be amended so as to make it charge the defendant in his individual capacity. McDonald v. Ward, 57 Conn. 304, cit- ing, as exactly in point, Tighe v. Pope, 16 Hun (N.Y.) 180; Fuller v. Webster F. Ins. Co., 12 How. Pr. (N. Y. Supreme Ct.) 293; Haddow v. Had- dow, 3 Thomp. & C. (N. Y.) 777. But the amendment cannot be made after trial to enable a judgment to be entered against the defendant indi- vidually. Van Cott v. Prentice, 104 N. Y. 45- A defendant sued personally may 540 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. liable may be substituted as a defendant where the amendment does not work a substantial change in the cause of action. 1 d. ADDING PLAINTIFFS. At common Law new plaintiffs could not be added by amendment. 2 statutory Provisions, especially in the Code states, have substantially adopted the liberal practice of the Court of Chancery, and allow new plaintiffs to be added when it becomes necessary in order to bring the merits of the controversy fairly to trial. 3 be charged by amendment in his ca- pacity as administrator. Hutchinson v. Tucker, 124 Mass. 240. In a suit on a bill of exchange an omission to charge the defendants as drawers and endorsers may be sup- plied by amendment. Ware v. Macon City Bank, 59 Ga. 840. After Submission of Case. An amend- ment by charging the defendant in a new capacity may be refused where the application is made after submis- sion of the case. Hays v. Turner, 23 Iowa 214. 1. The person in whom the legal title is vested may be substituted as a defendant. Seitz v. Buffum, 14 Pa. St. 69. Where suit was brought against the president of a company to enforce a company liability, the declaration was held amendable by striking out his name, so that it should stand against the corporation. Kimball, etc., Mfg. Co. v. Vroman, 35 Mich. 310; Prairie Lodge v. Smith, 58 Miss. 301, identical in principle. But see Davis Ave. R. Co. v. Mallon, 57 Ala. 168; Shuler v. Meyers, 5 Lans. (N. Y.) 170. So where suit was brought against a voluntary association in its own name, an amendment was allowed by substi- tuting its proper officers, so as to com- ply with the statute. McKane v. Democratic Gen'l Committee, 21 Abb. N. Cas. (N. Y. Supreme Ct.) 89. Defendants sued as individuals may be charged as a partnership by amendment. Williams -v. Bowdin, 68 Ala. 126; and, vice -versa, Sims v. Jacobson, 51 Ala. 186; Bannerman v. Quackenbush, n Daly (N. Y.) 529. Compare La Societe, etc., v. Weide- mann, 97 Cal. 507. In Ohio, wher"e the petition is filed before the summons is issued, if the names of partners are substituted in the place of the partnership name, there must be a new service of pro- cess. Marienthal v. Amburgh, 2 Disney (Ohio) 586. 2. Choteau v. Hewitt, 10 Mo. 131; Chamberlin v. Hite, 5 Watts (Pa.) 373; Wilson v. Wallace, 8 S. & R. (Pa.) 53; Carskadden v. McGhee, 7 W. & S. (Pa.) 140; Elliott v. Clark, 18 N. H. 421; Ayer v. Gleason, 60 Me. 207; White v. Curtis, 35 Me. 534; Winslow v. Merrill, n Me. 127; Pitkin v. Roby, 43 N. H. 138; Willink v. Renwick, 22 Wend. (N. Y.) 608; McWilliams v. Anderson, 68 Ga. 772. In Maine the common law, so far as relates to defendants, was changed by statute in 1835, c. 178, 4, by allow- ing the insertion or striking out of the names of the defendants. Rev. Stat. 1871, c. 82, g ii. But this pro- vision has never been held to au- thorize any amendment of a similar character as to plaintiffs. Ayer v. Gleason, 60 Me. 207, 208; White v. Curtis, 35 Me. 534. Thus, where the defendant was summoned in an action of trover to answer to " James C. Ayer and of," etc., " copartners under the style and firm-name of James C. Ayer & Co.," an amendment by in- serting the names of the other mem- bers of the firm was not allowed. Ayer v. Gleason, 60 Me. 207. 3. Tayon v. Ladew, 33 Mo. 205; Wellman v. Dismukes, 42 Mo. 101; Berry v. Ferguson, 58 Ala. 314; Har- ris v. Swanson, 62 Ala. 299; Godbold v. Blair, 27 Ala. 592; Reynolds v. Smathers, 87 N. Car. 24; Dutcher v. Slack, i Code R. (N. Y.) 113; Acquital v. Crowell, i Cal. 191; Polk v. Coffin, 9 Cal. 56; Cerf v. Ashley, 68 Cal. 419; Hubler v. Pullen, 9 Ind. 273; Flatley v. Memphis, etc., R. Co., 9 Heisk. (Tenn.) 230; Brazelton v. Turney, 7 Coldw. (Tenn.) 267; Lanes v. Squyres, 45 Tex. 382; Weinsteine v. Harrison, 66 Tex. 546; Reagan v. Copeland, 78 Tex. 551; Galveston, etc., R. Co. v. House, 4 Tex. Civ. App., 263; HanHn v. Baxter, 20 Kan. 134; Leavenworth 541 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. e. ADDING DEFENDANTS. At common Law new defendants could not be added by way of amendment unless by the express con- sent of the parties ;* but legislative sanction for such amendments is now common where the presence of the new parties is essential . to a complete determination of the case. 2 First Nat. Bank v. Tappan, 6 Kan. 456; Shaffer v. Eichert, 132 Pa. St. 285; Hite v. Kier, 38 Pa. St. 72; Balti- more, etc., Extension Co. v. Seiple (Pa., 1889), 18 Atl. Rep. 568; Has- brouck v. Winkler, 48 N. J. L. 431; Boles v. Jessup, 57 Ark. 469. In the Appellate Court. Where eject- ment was brought by a plaintiff in right of his wife, and on the trial verdict and judgment were had for the plain- tiff, an amendment adding the name of the wife as a necessary coplaintiff, doing no injury to the defendant, may be made on the argument in the Su- preme Court. Shaffer v. Eichert, 132 Pa. St. 285. On Appeal in County Court. In Ver- mont, Revised Laws, 939, authorizes the addition of necessary plaintiffs in actions on contract at any time before judgment, and leave may be granted by the County Court in a case appealed from the Probate Court. Wyman v. Wilcox's Estate, 63 Vt. 487. After Verdict. Where the merits of the case have been fully tried the plaintiff may have leave to amend after verdict by joining another party as plaintiff, so as to conform to the proof. Fenton v. Lord, 128 Mass. 466. Joining Tenants in Common. A tenant in common or joint tenant suing alone for rent may be permitted to join his cotenant as plaintiff. Weinsteine v. Harrison, 66 Tex. 546. In Ejectment. In actions of eject- ment in Illinois a declaration may be amended by adding a count making new parties plaintiffs. Chapin v. Cur- tenius, 15 111. 427. See also Strean v. Lloyd, 128 111. 493. In Partnership Suits. In all suits by partners or persons jointly interested, where the name of anyone who ought to have joined is omitted, it may be in- serted instanter on motion; but a suit brought by one in his individual name cannot be changed into a suit in the name of the partnership. Blackwell v. Pennington, 66 Ga. 240. But see Dixon v. Dixon, 19 Iowa 512; Lewis v. Locke, 41 Vt. ii. The Connecticut statute provides that all suits for or against a partnership may be commenced in the company name, and that the plaintiff may amend by inserting the names of the members of the firm. It was held that a suit commenced in the names of several persons as constituting a partnership might be amended by inserting the name of another partner. Stuart v. Corning, 32 Conn. 105. At What Stage. Although the stat- ute allows the names of partners to be inserted within the first three days of the term, the court may in its discre- tion allow plaintiff to insert them at a later stage of the case, the statute being liberally construed. Phelps v. Enz, 19 Conn. 58. Process upon Amending. The Ten- nessee Code allows the name of a new plaintiff to be substituted without any process. Flatley v. Memphis, etc., R. Co., 9 Heisk. (Tenn.) 230. Answer to Amendment. A defendant who has answered a petition is not in default because an amended petition is filed making a new party plaintiff to which no new answer is filed. Stevens v. Thompson, 5 Kan. 305. 1. Winslow v. Merrill, n Me. 127; Ayer v. Gleason, 60 Me. 208; Noll v. Swineford, 6 Pa. St. 187; Gove v. Lawrence, 24 N. H. 128, an action on a joint contract; Seitz z/. Buffum, 14 Pa. St. 70; Commission Co. v. Russ, 8 Cow. (N. Y.) 122. 2. Richter v. Cummings, 60 Pa. St. 441; Reber v. Wright, 68 Pa. St. 471; Hilton v. Osgood, 49 Conn, no; Alexander v. Thacker, 30 Neb. 614; Harkins v. Edwards, i Iowa 296; Lewis v. Adams, 70 Cal. 403; Johnston y. Neville, 68 N. Car. 177; Riley v. Stern, 23 Abb. N. C. (N. Y. City Ct.) 435; Bank v. Hornsey, 13 Civ. Pro. Rep. (N. Y. City Ct.) 158; Lewin v. Wright, 31 Hun (N. Y.) 327; Peyser v. Wendt, 87 N. Y. 322, an amendment allowed by a referee; Bergmann v. Salmon (Supreme Ct.), 53 N. Y. St. Rep. 236. See also Boute v. Taylor, 24 Ohio St. 628. In regard to the right of the new de- fendant to set up defenses as of the date when he is brought in, see infra, 12, a, (2). 542 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. /. STRIKING OUT PLAINTIFFS. At common Law, amendments by striking out the names of existing plaintiffs were not allowa- ble, 1 where nothing had occurred since the commencement of the suit to change the relations of the parties or the character of the claim. 2 When not Allowed. A defendant cannot be added at so late a period as to deprive him of any substantial right that he might have asserted if he had been made a party at the com- mencement of the proceedings. Young v. Young, 88 Pa. St. 422. Amendment of Course. Under the pro- visions of Wisconsin Gen. Laws 1859, c. 181, the plaintiff in an action might amend of course by making new defend- ants. Mead v. Bagnall, 15 Wis. 156. Before Plea in Abatement. Massachu- setts Stat. 1833, c. 194, provided for adding proper defendants in certain cases " at any time before issue joined on a plea of nonjoinder," and it was construed to allow the insertion of a defendant although no plea of non- joinder had been filed. Goddard v. Pratt, 16 Pick. (Mass.) 412. See also Pitkin v. Roby, 43 N. H. 138. After Plea in Abatement Sustained. A new defendant may be cited in, al- though there is no cause of action against the original defendants; and this may be done after the writ has been abated, a statute expressly pro- viding for amendment of defects af- ter plea in abatement sustained. Hil- ton v. Osgood, 49 Conn. no. See Chamberlin v. Noyes, 7 Hill (N. Y.) 145; Shute v. Davis, 2 Johns. Cas. (N. Y.) 336. After Demurrer Sustained. The plain- tiff may bring in defendants by amend- ment after demurrer has been sus- tained for nonjoinder. Alexander v. Thacker, 30 Neb. 614; State z/. Leckie, 14 La. Ann. 651. Insufficient Amendment. Where a complaint stating no cause of action or ground of relief against a particular person is not so amended as to do so, an order making such person a party defendant and requiring him to appear and answer such complaint is erro- neous. Penfield v. Wheeler, 27 Minn. 358. But an amendment which is in- sufficient in that respect may be reme- died by further amendment. Detroit Third "Nat. Bank v. Reilly, 81 Mich. 438. Improper Defendants. Where the statute allows the insertion of " proper parties " by amendment, the court may refuse to allow defendants to be in- troduced against whom the suit can- not be maintained. Tennessee Bank v. Skillern, 2 Sneed (Tenn.) 698. Where Liability Accrues Pending Suit. A defendant who was not liable when the suit was commenced cannot be added, although he may have ren- dered himself liable by ratification of the contract of the original defend- ant, his agent, pending the suit. Burns v. Campbell, 71 Ala. 272. Effect of Refusing Leave. Where leave to add a new defendant is denied, the ruling may be deemed as made with the consent of the defendant on record, so that he cannot subsequently complain of a nonjoinder or misjoin- der of parties. Fulton v. Cox, 40 Cal. 101. Effect of Making a New Defendant. Where a new defendant is brought in by order of court, the complaint must be amended or another complaint filed as to him, unless he waives his right by answering the original complaint. Vass v. People's Bldg. , etc., Assoc., 91 N. Car. 55; Smith v. Weage, 21 Wis. 440; Levi v. Engle, 91 Ind. 330; Vance v. Schroyer, 77 Ind. 501. Where new defendants are brought in by amendment of the complaint, the summons must be amended accord- ingly; otherwise the amendment may be stricken out on motion of the origi- nal defendant. Follower v. Laughlin, 12 Abb. Pr. (N. Y. Supreme Ct.) 105. 1. Ayer v. Gleason, 60 Me. 207; White v. Curtis, 35 Me. 534; Roach v. Randall, 45 Me. 438; Treat v. Mc- Mahon, 2 Me. 120, where the court re- fused leave to strike out the name of a demandant improvidently inserted in a writ of entry; Pickett v. King, 4 N. H. 212, a similar case; Kelly v. Eich- man, 3 Whart. (Pa.) 419; Crump v. Wallace, 27 Ala. 277; Moores v. Carter, Hempst. (U. S.) 64. See also Cars- kadden v. McGhee, 7 W. & S. (Pa.) 140. 2. In Chadbourne v. Rackliff, 30 Me. 354, an amendment by striking out the name of one of the demandants in a writ of entry, was allowed, but this was upon the ground that the ten? nt 543 Of Pleadings, etc., at , AMENDMENTS. Common Law, under Codes, etc. statutory Provisions in almost every state authorize amendments by striking out one or more of several plaintiffs. 1 g. STRIKING OUT DEFENDANTS. At common Law amendments by striking out one or more of several defendants were allowed in actions for torts and in real actions, 2 but not in actions on con- tracts. 3 had acquired the title of one of the original demandants after the com- mencement of the suit. So in Treat v. Strickland, 23 Me. 234, where one of the demandants died after suit brought. 1. Thompson v. Mosely, 29 Mo. 477; Davis v. Ritchie, 85 Mo. 501; Tayonv. Ladew, 33 Mo. 205; Farrow v. Com. Ins. Co., 18 Pick. (Mass.) 57; Finney v. Bedford Commercial Ins. Co., 8 Met. (Mass.) 348; Thayer v. Hollis, 3 Met. (Mass.) 369; Dodge v. Wilkin- son, 3 Met. (Mass.) 292; Parker v. Chambers, 24 Ga. 518 ; Whitaker v. Pope, 2 Woods (U. S.) 463; Hinkle v. Davenport, 38 Iowa 355; Butcher v. Carleton, II Iowa 47 ; Collins v. Townsend, 2 Harr. (Del.) 317 . a.; Reed v. Northeastern R. Co., 37 S. Car. 42; Hudson v. Feige, 58 Mich. 148; Miller v. Cappel. 39 La. Ann. SSi ; Neal v. Spooner, 20 Fla. 38 ; Hamill v. Ashley, n Colo. 180; Jarrett v. Gibbs, 107 N. Car. 303; Tormey v. Pierce, 49 Cal. 306; Heath v. Lent, i Cal. 410; Wilson v. King, 6 Yerg. (Tenn.)493; Lillard v. Rucker, 9 Yerg. (Tenn.) 64; Weaver w. Young, 37 Kan. 70; Hanlin v. Baxter, 20 Kan. 134, a case in a justice court; Kansas Pac. R. Co. v. Nichols, 9 Kan. 235; Holt v. Thacher, 52 Vt. 592; Miller v. Pollock, 99 Pa. St. 202; Musser v. Gardner, 66 Pa. St. 242; Rangier v. Hummel, 37 Pa. St. 130; Lapham v. Rice, 55 N. Y. 472, holding that in a justice court one of two joint plaintiffs may . be struck out; Pomboy v. Sperry, 16 How. Pr. (N. Y. Supreme Ct.) 211; Holmes v. Schermerhorn, 5 How. Pr. (N. Y. Supreme Ct.)44o; Lowery v. Rowland (Ala., 1894), 16 So. Rep. 88; Lansburg v. Cohen, 52 Ala. 180; McBrayer v. Cariker, 64 Ala. 50; Steed v. Mclntyre, 68 Ala. 407; Berry v. Ferguson, 58 Ala. 314; State v. Rice, 65 Ala. 83; Dwyer jnnemore, 31 Ala. 404; Jemison v, Sm.th, 37 Ala. 185 Contra in Alabama before the Code. Crump v. Wallace, 27 Ala. 277. A party plaintiff may be made a de- fendant. Liggett v. Ladd, 23 Oregon 26. Leave Discretionary. Leave to amend during the trial by striking out the name of some of the plaintiffs was held to be discretionary, and a re- fusal not a subject of exception, in Gwynn v. Globe Locomotive Works, 5 Allen (Mass.) 317. In the Appellate Court. When the pe- tition shows a cause of action in one plaintiff only and a judgment is ren- dered in favor of both, an amendment cannot be made in the appellate court by striking out the name of the one erroneously included in the judgment. Megher v. Stewart, 6 Mo. App. 498. 2. Winslow v. Merrill, n Me. 127; Reddington v. Farrar, 5 Me. 380. 3. Redington v. Farrar, 5 Me. 379; Fleming v. Freese, 26 N. J. L. 263; Cooper v. Whitehouse, 6 C. & P. 545, 25 E. C. L. 535. See also Burr v. Ross, 19 Ark. 250. Contra, Colcord v. Swan, 7 Mass. 291, disapproved in Red- ington v. Farrar, supra. Entering Nol Pros. Where a suit is brought against several upon a con- tract which is several as well as joint, or where the contract sued on is joint, and the defendants sever in their pleas, the plaintiff may at common law, according to the decisions in this country, enter a nol pros as to one de- fendant, whether before or after judg- ment, without affecting his right to recover or the validity of his judg- ment as against other defendants. Austin v. Jordan, 5 Tex. 130, where the court cites as maintaining this rule, which departs in some degree from the English practice as laid down in I Chitty PL 50, Minor v. Mechanics' Bank, i Pet. (U. S.) 46; Hartness v. Thompson, 5 Johns. (N. Y.) 160; Woodward v. Nevvhall, I Pick. (Mass.) 500. See also Forbes v, Davis, 18 Tex. 268; Andrus v. Pettus, 36 Tex. 108; Coburn v. Ware, 25 Me. 330; Beaman v. Whitney, 20 Me. 413; Ber- inger v. Meaner, 85 Pa. St. 223; Ganzer v. Fricke, 57 Pa. St. 316. Where there is no severance of pleas, and the plaintiff fails to prove a joint contract, and after a finding equivalent to a verdict of no joint 544 Of Pleadings, etc., at AMEJ\ DMENTS. Common Law, under Codes, etc. By statute. Statutory authority to allow amendments striking out defendants who are improperly joined is now almost or quite universal. 1 h. ENTIRE CHANGE OF PARTIES. Although there is much latitude in allowing amendments by substitution in order to con- form to the law of parties, 8 yet an entirely new plaintiff with a different and independent cause of action cannot be admitted to displace the original plaintiff ; 3 nor can there be a change of de- promise, the plaintiff cannot amend by striking out one of the defendants. Griffin v. Simpson, 45 N. H. 18. Under the Illinois Practice Act of 1874 the court may allow the plaintiff, after verdict against two defendants, to amend his declaration by discontin- uing as to one of them. Cogshall v. Beesley, 76 111. 445. In New Jersey, where too many de- fendants are joined in an action on contract, the proceedings can be amended only in the manner pointed out by the statute [by notice of objec- tion, etc.], and if not so amended can- not be amended on the trial by strik- ing out those improperly joined. Fleming v. Freese, 26 N. J. L. 263, citing Cooper v. Whitehouse, 6 C. & P. 545, 25 E. C. L. 535- 1. Beall v. Territory, i N. Mex. 507; Brown v. Pickard, 4 Utah 292; Riley v. Stern, 23 Abb. N. C. (N. Y. City Ct.) 435; Fifty Associates z\ How- land, 5 Cush. (Mass.) 214; Fitch v. Stevens, 2 Met. (Mass.) 505; Turners. Bissell, 14 Pick. (Mass.) 192; Ridley v. Knox, 138 Mass. 83; Turner v. Hiller- line, 14 How. Pr. (N. Y. Supreme Ct.) 231; Harney v. Corcoran, 60 Cal. 314; Atlantic, etc., R. Co. v. Laird (Cal.), 58 Fed. Rep. 760; Blaisdell v. Bohr, 68 Ga. 56; Chattanooga, etc., R. Co. v. Whitehead, 89 Ga. 190; Solomon v. City Compress Co., 69 Miss. 319, under 1581, Rev. Code, allowing amend- ments so as to bring the merits of the controversy fairly to trial; Beaman v. Whitney, 20 Me. 413; Coburn v. Ware, 25 Me. 330; Fuller v. Miller, 58 Me. 40; Cutts v. Haynes, 41 Me. 560; West v. Furbish, 67 Me. 17; Winn v. Averill, 24 Vt. 283, where a defendant dead when the suit was brought was struck out; Henry v. State Bank, 3 Ind. 216; Taylor v. Jones, i Ind. 17; Trees v. Eakin, 9 Ind. 554; Barncord v. Kuhn, 36 Pa. St. 383; Ganzer v. Fricke, 57 Pa. St. 316; Jackson v. Lloyd, 44 Pa. St. 82; Steed v. Mclntyre, 68 Ala. 407; Jones v, Engelhardt, 78 Ala. 505 ; Odom v. Shackleford, 44 Ala. 331; Lowery v. Rowland (Ala., 1894), 16 So. Rep. 88; Huntsville, etc., R. Co. v. Carpening, 98 Ala. 681; Englehardt v. Clanton, 83 Ala. 336; Jones v. Nelson, 51 Ala. 471; Masterson v. Gibson, 56 Ala. 56; Sellar v. Clelland, 2 Colo. 532. Leave to strike out may be refused in the absence of any showing of mis- take. Locke v. Daugherty, 43 Pa. St. 88 ; Mock v. Walker. 42 Ala. 668 ; Bachus v. Mickle, 45 Ala. 445; Kendall v. Lassiter, 68 Ala. 181; Pool v. De- vers, 30 Ala. 672, after demurrer for misjoinder; Demeritt v. Mills, 59 N. H. 18; Perley v. Brown, 12 N. H. 493; Emerson v. Shaw, 57 N. H. 223. Com- pare Griffin v. Simpson, 45 N. H. 18. After Judgment. In New York the plaintiff may have leave to strike out some of the defendants after judg- ment in his favor. Sherman v. Fream, 8 Abb. Pr. (N. Y. Supreme Ct.) 33. 2. See supra, b, c, Substituting Assignee. The court may on the trial order an amendment substituting as a party plaintiff one to whom the plaintiff assigned his inter- est before suit. Suber v. Chandler, 28 S. Car. 382; Clawson v. Cone, 2 Handy (Ohio) 67; Wellman v. Dis- mukes, 42 Mo. 101. Contra, Wood v. Metropolitan L. Ins. Co., 96 Mich. 437. In Mississippi under the new Plead- ing Act of 1850, 13, the real plaintiff may amend his complaint by substi- tuting the name of one nominal plain- tiff for that of another. Denton v, Stephens, 32 Miss. 194; Stratton v. Taylor, 32 Miss. 201. 3. Pickens v. Oliver, 32 Ala. 626; Leaird v, Moore, 27 Ala. 326; Davis Ave. R. Co. v. Mallon, 57 Ala. 168; Friend v. Oliver, 27 Ala. 532; Stodder v. Grant, 28 Ala. 416; Fowlkes v. Mem- phis, etc., R. Co., 38 Ala. 310; Miles v. Strong, 60 Conn. 393; Lake v. Morse, ii 111. 587; Merrill v. Merrill, 92 N. Car. 657; Grandy v. Sawyer, 2 Hawks (N. Car.) 61; Hunnicutt v. Stone, 85 Ga. 435; McWilliams v. Anderson, 6& I Encyc. PI. & Pr. 35. 545 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. fendants by the substitution of entirely different defendants. 1 Ga. 772; Morrow v. Merchants', etc., Bank, 35 Ga. 267; Neal v. Robertson, 18 Ga. 399; Lumpkin v. Respess, 68 Ga. 822; Blackwell v. Pennington, 66 Ga. 240; Marsh River Lodge v. Brooks, 61 Me. 585; Thayer v. Farrell, n R. I. 305; Davis v. New York, 14 N. Y. 506; Wright v. Storms, 3 Code Rep. (N. Y.) 138; Willink v. Renwick, 22 Wend. (N. Y.) 608; Phillips v. Mel- ville, 10 Hun (N. Y.) 211 ; Coffing v. Tripp, i How. Pr. (N. Y.) 115; John- son v. Mayrant, i McCord (S. Car.) 484 ; Hagerty v. Hughes, 4 Baxt. (Tenn.) 222 ; Wood v. Metropolitan L. Ins. Co. 96 Mich. 437; Emerson v. Wilson, ii Vt. 357; Moore v. Lancas- ter, Wright (Ohio) 35; Curacel v. Con- Ion, 2 Martin (La.) 143; Jones v. Jen- kins, 9 Rob. (La.) 180; Duncan z/. Helm, 21 La. Ann. 303. Compare far- rier v. Schroeder, 40 N. J. L. 601. Restatement of the Rule. Where a plaintiff in his complaint shows that he has no such interest as entitles him to invoke the jurisdiction of the court, he cannot amend it by making others plaintiffs who have a cause of action. State v. Rottaken, 34 Ark. 144, hold- ing that the statutory authority to add or strike out the name of any party assumes that the plaintiff has a cause of action; citing, as in point, Davis v. New York, 14 N. Y. 506, to which may be added Miles v. Strong, 60 Conn. 393- By Addition and Subtraction. Such a substitution cannot be accomplished by adding a coplaintiff by one amend- ment and striking out the original plaintiff by another amendment. Pick- ens v. Oliver, 32 Ala. 626; Tarver v. Smith, 38 Ala. 135. Making a New Cause of Action. An administrator de bonis non has no right of action against the representatives of a former administrator for a devas- tavit; and having brought such an ac- tion, he cannot amend by substituting creditors, legatees, etc., in whom the right of action exists. State v. Rott- aken, 34 Ark. 144. In Case of Mistake. In Weaver v. Young, 37 Kan. 70, it was held that the name of Joseph M. Young as sole plaintiff could be struck out and that of E. J. Young, a different per- son, substituted upon a showing that the first name was used by mis- take. The court said that if the ques- tion was presented for the first time it would be difficult to get over the con- trary authorities. See also Hanlin v. Baxter, 20 Kan. 134; Atchison v. Twine, 9 Kan. 350; Leavenworth First Nat. Bank v. Tappan, 6 Kan. 436. Where Substituted Party has No Right. After the evidence is closed an amendment will not be allowed which substitutes for the plaintiff a third party who is shown by the proof to have no title to recover. Shaw v. Alexander, 32 Miss. 229. 1. Little -v. Virginia, etc., Water Co., 9 Nev. 317; Shuler v. Meyers, 5 Lans. (N. Y.) 170; Stodder v. Grant, 28 Ala. 416; Davis Ave. R. Co. v. Mallon, 57 Ala. 168; Ex p. Collins, 49 Ala. 69; Western R. Co. v. McCall, 89 Ala. 375; Hunnicutt v. Stone, 85 Ga. 435; Len- nard v. Jones, 27 Ga. 309; Nashville, etc., R. Co. v. Edwards, 91 Ga. 24; Saw- yer -v. New York State Clothing Co., 58 Vt. 588, holding that a partnership with the names of the partners could not be substituted for a corporation as sole defendant. See also Weise v. Rich, 77 Mich. 325. In New York, etc., Milk Pan Assoc. v. Remington's Agricultural Works, 25 Hun (N. Y.) 475, an action brought against the defendant corporation on a contract alleged to have been made by it, the summons and complaint were served upon one of the officers who with others constituted a partnership by which the contract was really made, the partnership doing business under the name of the corporation. The plaintiff, after issue joined, was al- lowed to amend the summons and complaint by striking out the defend- ant's name and substituting therefor the names of the partners. This ruling was reversed by the Court of Appeals in New York, etc., Milk Pan Assoc. v. Remington Agricultural Works, 89 N. Y. 22, where the court said that, "while full authority is con- ferred for adding or striking out the name of a person or a party or correcting a mistake in such name, it [8 723 of the Code] does not sanction an entire change of name of the defendant by the substitution of another or entirely different defend- ants;" citing, as directly in point, Bas- sett v. Fish, 75 N. Y. 303, and Shaw v. Cock -8 N. Y. 194. 546 Of pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. 6. Introducing a New Cause of Action or Defense a. PREVA- LENCE AND EXTENT OF THE RULE FORBIDDING. At common Law the court had no power to allow the plaintiff to amend by introducing an entirely new and different cause of action. * Nor could the defendant amend by setting up a new defense founded upon a transaction entirely different from that stated in the plea. 3 But the last proposition has been disputed. 3 Other New York cases bearing upon the question and discussed in the opinions at general term in the case above quoted from on appeal are : Mc- Elwain v. Corning, 12 Abb. Pr. (N. Y. Supreme Ct.) 16; Newton v. Milleville Mfg. Co., 17 Abb. Pr. (N. Y. Supreme Ct.) 518, note; Fuller v. Webster F. Ins. Co., 12 How. Pr. (N. Y. Supreme Ct.) 293 ; Risley v. Wightman, 13 Hun (N. Y.) 164; Tighe v. Pope, 16 Hun (N. Y.) 180; Havana Bank v. Magee, 20 N. Y. 359; Walsh v. Wash- ington Marine Ins. Co., 32 N. Y. 439; Thompson v. Kessel, 30 N. Y. 383; Ackley v. Tarbox, 31 N. Y. 564. In Case of Devolution of Liability. Under the New York Code of Civ. Pro. 756, authorizing the court to direct the person upon whom a liability has devolved to be substituted, such substi- tution may be made by amendment. Abbott v. Jewett, 25 Hun (N. Y.) 603. Substituting Names of Partners. Where a statute authorized suits to be brought against a partnership in the firm-name, and the names of the part- ners to be inserted by amendment, it was held that a writ against " R. P., doing business under the name and firm of R. P. & Son," was not a writ against a partnership but against R. P. only, and could not be amended by inserting the names of A., B., and C. as copartners with R. P. Maritime Bank v. Rand, 24 Conn. 9. 1. Shipman Common-Law Pleading, 142; Andrews' Stephen's Pleading, 167; Heard Civil Pleading, 71. New York. Woodruff v. Dickie, 31 How. Pr. (N. Y. Supreme Ct.) 164. Massachusetts. Ball v. Claflin, 5 Pick. (Mass.) 303; Chaffee v. Jones, 19 Pick. (Mass.) 265; Brigham v. Este, 2 Pick. (Mass.) 425; Mason v. Waite, i Pick. (Mass.) 452; Guilford v. Adams, 19 Pick. (Mass.) 376; Kelley v. Taylor, 17 Pick. (Mass.) 218. Colorado. Givens v. Wheeler, 5 Colo. 598. Indiana. Falknerw.Iams.S Ind. 200. Michigan. People v. Judges, I Dougl. (Mich.) 434. See also Holmes v. Robinson Mfg. Co., 60 Me. 201; Parkman v. Nutt- ing, 59 Me. 398; Dana v. McClure, 39 Vt. 197 ; Cassell v. Cooke, 8 S. & R. (Pa.) 287; Duffey v. Houtz, 105 Pa. St. 96; Gardners. Post, 43 Pa. St. 19; Steffy v. Carpenter, 37 Pa. St. 41; Diehl v. Adams County Mut. Ins. Co., 58 Pa. St. 443; Root -v. O'Neil, 24 Pa. St. 326; Trego v. Lewis, 58 Pa. St. 463; Forward School Dist. Appeal, 56 Pa. St. 318; Fairchild v. Dunbar Furnace Co. (Pa., 1889), 18 Atl. Rep. 443; Smith v. Smith, 45 Pa. St. 403; Wright v. Hart, 44 Pa. St. 454; Dull v. Amies, 2 Miles (Pa.) 144 ; Stout v. Stout, 44 Pa. St. 457; Kaul v. Law- rence, 73 Pa. St. 410; Tyrrill v. Lamb, 96 Pa. St. 464; Royse v. May, 93 Pa. St. 454; Frankem v. Trimble," 5 Pa. St. 520; Wood v. Anderson, 25 Pa. St. 407; Horton v. McCurdy, 14 Phila. (Pa.) 221; Diehl v. McGlue, 2 Rawle (Pa.) 337; Yohe v. Robertson, 2 Whart. (Pa.) 155; Coxe v. Tilghman, i Whart. (Pa.) 282; Tryon v. Miller, i Whart. (Pa.) n; Newlin v. Palmer, n S. & R. (Pa.) 98; Farmers', etc., Bank v. Israel, 6 S. & R. (Pa.) 293; Sweigart v. Lowmarter, 14 S. & R. (Pa.) 200. In Tilton v. Cofield, 93 U. S. 166, the court alludes to Tiernan v. Wood- ruff, 5 McLean (U. S.) 135, as holding that a " new and independent cause of action" could be introduced into the suit at common law. But in the case last cited Justice Wilkins expressly declared that the new count there added by amendment was "in strict- ness and in truth not introductive of a new substantive cause of action." See also Postmaster Gen'l v. Ridgway, Gilp. (U. S.) 135; Watts v. Weston, 62 Fed. Rep. 136. 2. Heard Civil Pleading, 71; David v. Preece, 5 Q. B. 440; Woodruff v. Dickie, 31 How. Pr. (N. Y. Supreme Ct.) 164. See also People v. McHat- ton, 7 111. 731, holding that an amend- ment to a plea should at least have some resemblance to the plea itself. 3. Diamond v. Williamsburgh Ins. Co., 4 Daly (N. Y.) 494. 547 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Under Codes and Statutes. The practice, even in those states where the Code provisions relating to amendments are identical, is not uniform, although the common-law rule is generally adhered to. 1 1. Alabama. The Code, 2833, allows the amendment of "imperfection and defect of form." In Mohr v. Lemle, 69 Ala. 180, a case where the complaint was amended before trial, Brickell, C.J., says that "the plaintiff may introduce a new cause of action by amendment," so long as " a cause of action entirely new [italicized by the court] is not intro- duced;" and an action for libel was held amendable by adding a libel dif- fering in substance and written and published at a different time, but ad- dressed to the same parties. See also Alabama G. S. R. Co. v. Smith, 81 Ala. 229; Bowling v. Blackman, 70 Ala. 303; Barker v. Anniston, etc., R. Co., 92 Ala. 314; Evans v. Richardson, 76 Ala. 329- But it seems that a new cause of action, although it be not "entirely" new, cannot be introduced by amend- ment on the trial. Mobile L. Ins. Co. v. Randall, 74 Ala. 170; Marian v. Smitherman, 71 Ala. 563 \followed with caution in Semple v. Glenn, 91 Ala. 245. New Defense. That the defendant has no right to file an entirely new plea as an amendment, see Jones z>. Ritter, 56 Ala. 270. Arkansas. The statute prohibits a substantial change of the claim or de- fense only when the amendment is made in order to conform to the proofs. Mansfield's Dig. 5080. St. Louis, etc., R. Co. v. Dodd (Ark., 1894), 27S.W. Rep. 227, assumes that such a change cannot be made after the case is submitted to the jury. California. A new and separate cause of action cannot be introduced by amendment after answer either be- fore or on the trial. Ramirez v. Mur- ray, 5 Cal. 222; Hackett v. California Bank, 57 Cal. 335 ; Deering's Ann. Codes & Stats. 472. See also Louvall v. Gridley, 70 Cal. 507; Jones v. Frost, 28 Cal. 245: Atlantic, etc., R. Co. v. Laird, 58 Fed. Rep. 760 ; Ware v. Walker. 70 Cal. 591; Nevada County, etc., Canal Co. v. Kidd, 28 Cal. 673; Cox v. McLaughlin, 76 Cal. 60. Com- pare Anderson v. Mayers, 50 Cal. 525; Atkinson v. Amador, etc., Canal Co., 53 Cal. 102. Colorado. Although not expressly prohibited by statute, an entirely new cause of action cannot be introduced at any stage after answer. Givens v. Wheeler, 5 Colo. 598 ; Rockwell v. Holcomb, 3 Colo. App. i; Wheeler v. Northern Colo. I. Co., 10 Colo. 582. Connecticut. Before the enactment of the Practice Act of 1879, the plain- tiff could not amend at any stage so as to change the " ground of the action." Peck v. Sill, 3 Conn. 157; Ross v. Bates, 2 Root (Conn.) 198; Minor v. Wood- bridge, 2 Root (Conn.) 274; Spencer r. Howe, 26 Conn. 200; Church v. Syra- cuse, etc., Coal Co., 32 Conn. 372; Nash v. Adams, 24 Conn. 33, defining "ground of action" as used in the statute; on which point see also Don- ahue's Appeal, 62 Conn. 370. The Practice Act. Gen. Stat., i8S8, 1023, authorizes the addition of new counts which might have been origi- nally inserted in the complaint; but this does not sanction an amendment set- ting up an independent cause of action in favor of another plaintiff. Miles v. Strong, 60 Conn. 393. Georgia. The Code, 3480, provides that " no amendment adding a new and distinct cause of action * * * shall be allowed unless expressly provided by law," and this provision is enforced at every stage of the case. Roberts v. Ger- mania F. Ins. Co., 71 Ga. 478; Steed v. Mclntyre, 68 Ala. 407; Chattanooga etc., R., Co. v. East Rome Town Co., 89 Ga. 732; Broach v. Kelly, 66 Ga. 148; Pokes v. De Vaughn, 66 Ga. 735; Central R., etc., Co. v. Wood, 51 Ga. 515; Matthews v. Woolfolk, 51 Ga. 618; Long v. Bullard, 59 Ga. 355; Ad- kins v. Hutchings, 79 Ga. 260; Singer Mfg. Co. v. Armstrong, 91 Ga. 745; Dinkier v. Baer (Ga., 1893), 17 S. E. Rep. 953; Rice v. Caudle, 71 Ga. 605; Bolton v. Georgia Pac. R. Co., 83 Ga. 659; Cox v. Murphy, 82 Ga. 623 [a strong case]; Cox v. Richmond, etc., R. Co., 87 Ga. 747; White v. Moss, 67 Ga. 89; Ayres v. Daly, 56 Ga. 119; Mitchell v. Georgia R. Co., 68 Ga. 644; Hall v. Waller, 66 Ga. 483; Ran- sone v. Christian, 56 Ga. 351; Croghan v. New York Underwriters' Agency, 53 Ga. 109; Williams v. Hollis, 19 Ga. 313; Phillips v. Dodge, 8 Ga. T; 548 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Lamar v. Russell, 77 Ga. 307; Exposi- tion Cotton Mills v. Western, etc., R. Co., 83 Ga. 441; Skidaway Shell Road Co. v. O'Brien, 73 Ga. 655; Pearson v. Reid, 10 Ga. 580; Dawty v. Hansell, 20 Ga. 659; Latine v. Clements, 3 Ga. 426; Milburn v. Davis (Ga., 1893), 17 S. E. Rep. 286; Parmelee v. Savannah, etc., R. Co., 78 Ga. 239; Barren v. Walker, 80 Ga. 121 ; Lamar v. Russell, 77 Ga. 307; McWilliams v. Anderson, 68 Ga. 772; Anderson v. Pollard, 62 Ga. 46. Illinois. The statute allows amend- ment at any time before final judgment, "to enable the plaintiff to sustain the action for the claim for which it was in- tended to be brought, or the defendant to make a legal defense;" and also pro- vides that the adjudication of the court allowing an amendment shall be con- clusive evidence of the identity of the action. -See Fame Ins. Co. v. Thomas, 10 111. App. 545. Indiana. The statute provides for amendments * * * "to conform the pleadings to the facts proved when the amendment does not substantially change the claim or defense." Rev. Stat. 1881, 396. Before the Trial. In Levy v. Chit- tenden, 120 Ind. 40, it was said that parties may amend their pleading to al- most any extent before entering upon the trial ; and in Burr v. Mendenhall. 49 Ind. 499, that a new cause of action or defense may be added upon good cause shown by affidavit. In Falkner -v. lams, 5 Ind. 200, de- cided before the adoption of the Code, an amendment converting an action ex delicto into one ex contractu was de- nied. On the Trial. The right to make amendments on the trial which change the issue or make a new issue was rec- ognized, subjectto conditions and limit- ations therein stated, in the following cases: Wayne County Turnpike Co. v. Berry, 5 Ind. 286; Taylor v. Dodd, 5 Ind. 246; Ostrander v. Clark, 8 Ind. 2ii ; Trees v. Eakin, 9 Ind. 554; Ker- stetter v, Raymond, 10 Ind. 199; Kerschbaugher v. Slusser, 12 Ind. 453; Danville, etc., Plank - road Co. v. State, 16 Ind. 456; Holcraft v. King, 25 Ind. 352; Mason v. Seitz, 36 Ind. 516; De Armond v. Armstrong, 37 Ind. 35; Koons v. Price, 40 Ind. 164; Maxwell v. Day, 45 Ind. 509; Hackney v. Williams, 46 Ind. 413; Burr v. Men- denhall, 49 Ind. 496, where the plain- tiff was permitted to add " a new cause of action," the defendant not asking for delay. The right to make such amendments on the trial was expressly denied in Miles v. Vanhorn, 17 Ind. 245. Thomp- son v. Jones, 18 Ind. 476; Hoot v. Spade, 20 Ind. 326; Landryz/. Durham, 21 Ind. 232; Harris v. Mercer, 22 Ind. 329; Shank v. Fleming, 9 Ind. 189. After the Cause is Submitted. " This court has always held that it is error to allow an amendmentwhich changes the nature of the cause of action or defense after the trial has been concluded be- fore the court or jury trying the same. Miles v. Vanhorn, 17 Ind. 245; Proctor v. Owens, 18 Ind. 21 ; Hoot v. Spade, 20 Ind. 326; Shropshire v. Kennedy, 84 Ind. in." Levy v. Chittenden, 120 Ind. 40. See also Blasingame v. Bla- singame, 24 Ind. 86; Kerstetter v. Raymond, 10 Ind. 199. Iowa. The Code authorizes various amendments at any time, etc., "or when the amendment does not change substantially the claim or defense by conforming the pleading or proceedings to the facts proved." It does not con- fer the privilege of adding or substitut- ing a cause of action based on an en- tirely different right. Cook v. Chicago, etc., R. Co., 75 Iowa 171. See also Nelson v. Hays, 75 Iowa 671; Wade v. Clark, 52 Iowa 158; Sheldon v. Booth, 50 Iowa 209; Sweetzer v. Harwick, 67 Iowa 488. It would seem from the case last cited that a new defense may be allowed on the trial. But it is the settled practice to permit the plaintiff before final submission to change an action from law to equity, or vice versa. Barnes v. Hekla F. Ins. Co., 75 Iowa n; Esch Bros. -v. Home Ins. Co., 78 Iowa 334; Newman v. Covenant Mut. Ins. Assoc., 76 Iowa 56; Emmet County v. Griffin, 73 Iowa 163. After Judgment. The defendant can- not amend after judgment by setting up the statute of limitations. McNider v. Sirrine, 84 Iowa 58. Kansas. The earlier provisions in the Code expressly restricted all amendments at any stage of the cause to such as did not substantially change the claim or defense. Irwin v. Paulett, I Kan. 427. In Scott v. Smith, 2 Kan. 438, an amendment to the answer was reject- ed on this ground. In the present Code a clause is interpolated permitting amendments 549 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. to conform pleadings to proof, and whether the old limitation is confined to such cases is uncertain. See Gen. Stat. 1889, 4222. The question was expressly left un- decided in Kansas Pac. R. Co. v. Salmon, 14 Kan. 512. See Gulp v. Steere, 47 Kan. 746; Byer v. Reed, 18 Kan. 86. The court may in its discretion re- fuse to allow the plaintiff to set up a new cause of action, Books v. Kager, 23 Kan. 114; and may refuse to allow the defendant to add a new defense after the case has been partly tried. Russell v. Gregg, 49 Kan. 89. Granting leave to amend by chang- ing the cause of action or defense is not erroneous unless substantial rights of the adverse party are affected thereby. Stevens v. Matthewson, 45 Kan. 594, where all the costs were imposed on the defendant and a continuance granted, the court holding, however, that this conclusion is based upon the language of the statute of jeofails, 140, Code Civ. Pro. Kentucky. The Code provision is substantially the same as in New York. See infra in this note. Smith v. Bogenschutz (Ky., 1892), 19 S. W. Rep. 667, implies that the plain- tiff cannot amend by introducing a new cause of action. But in the fol- lowing cases such amendments were permitted, the plaintiff being required to serve a new summons upon the de- fendant. Cecil v. Sowards, 10 Bush (Ky.)g6; Rutledge z/.Vanmeter, 8 Bush (Ky.) 354; Joyes v. Hamilton, 10 Bush (Ky.) 545; Rutledge v. Vanmeter, 8 Bush (Ky.) 354; McGrath v. Balser, 6 B. Mon. (Ky.) 141. Compare Louis- ville, etc., R. Co. v. Case, 9 Bush (Ky.) 728. Louisiana. An amendment to a pe- tition or answer which substantially changes the claim or defense will not be permitted. Guilbeau v. Thibodeau, 30 La. Ann. 1099; King v. Gantt, 33 La. Ann. 1148; Estill v. Holmes, 3 Rob. (La.) 134; Menefee v. Johnson, 2 Rob. (La.) 274; Murdock v. Browder, 5 Martin N. S. (La.) 677 ; Abat v. Bayon, 4 Martin N. S. (La.) 516; Vavasseur v. Bayon, i Martin (La.) 639; Melancon v. Robechaud, 16 La. 151; Mason v. Mason, 12 La. 589; Mc- Rae v. McRae, ir La. 571; Babcock v. Shirley, n La. 73; Calvert v. Tun- stall, 2 La. 207; Stilley v. Stilley, 20 La. Ann. 53; Morrison v. Keller, 10 La. Ann. 542. See, for instances where the amendment was not obnoxious to the rule, Haydel v. Bateman, 2 La. Ann. 755; Ledoux v. Buhler, 21 La. Ann. 130; Castille v. Dumartrait, 5 Martin N. S. (La.) 69 ; Hoover v. Richards, i Rob. (La.) 34. Maine. The statute provides for amendments of " circumstantial errors or defects." Rev. Stat. 1882, c. 82, g 10. A new cause of action cannot be in- troduced. Wyman v. Kilgore, 47 Me. 184; Annis v. Gilmore, 47 Me. 152; Sawyer v. Goodwin, 34 Me. 419 ; Farmer v. Portland, 63 Me. 46 ; Bruce v. Soule, 69 Me. 562 ; Place v. Brann, 77 Me. 342; Lambard v. Fowler, 25 Me. 308; Eaton v. Ogier, 2 Me. 46 ; Bishop v. Williamson, II Me. 495; Bartlett v. Perkins, 13 Me. 87; Skowhegan Bank v. Cutler, 49 Me. 315; Cooper v. Waldron, 50 Me. 80. Massachusetts. The court may at any time before final judgment permit amendments "which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought or the defendant to make a legal defense." Pub. Stat. 1882, c. 167, 42. In Sheldon v. Smith, 97 Mass 36, an amendment presenting substantially a new cause of action was rejected. But if the amendment expresses the origi- nal intention of the plaintiff, it should be allowed regardless of the fact that the declaration thereby becomes de- murrable. Daley v. Boston, etc., R. Co., 147 Mass. 101. See Townsend Nat. Bank v. Jones, 151 Mass. 454; Hayward v. Hapgood, 4 Gray (Mass.) 437' The alteration must be an amend- ment and not the institution in fact of a new suit upon a new cause of action. Smith v. Palmer, 6 Cush. (Mass.) 513, where the court lays down the rule by which to determine the question what shall be considered a new cause. A plea in abatement offered after pleading to the merits and hearing and report by an auditor is not a "legal defense," and it is error to allow it to be filed at that stage. Hast- ings v. Bolton, i Allen (Mass.) 529. Michigan. The court has power to amend "either in form or substance * * * at any time before judgment." How. Stat. 1882, 7631. A new and different cause of action is not within the province of amend- 550 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. ment. Connecticut F. Ins. Co. v. Kinne, 77 Mich. 231; Hurst v. Detroit City R. Co., 84 Mich. 539; People v. Judges, I Dougl. (Mich.) 434; People v. Wayne Circuit Judge, 13 Mich. 206. Especially if the new cause be barred by limitation. People v. Circuit Judge, 27 Mich. 138; People v. Judge, 35 Mich. 227; McCreery v. Cobb, 93 Mich. 462. See also Wingert v. Carpenter (Mich., 1894), 59 N. W. Rep. 662; Weise v. Rich, 77 Mich. 325. Minnesota. The Code provisions are substantially the same as those in New York. See infra in this note. An amendment introducing a new cause of action will not be allowed after issue joined. Bruns v. Schreiber, 48 Minn. 366. The refusal of the court to allow an answer setting up a counterclaim to be amended so as to make it applicable to a wholly different subject was held to be a proper exercise of discretion. Iverson v. Dubay, 39 Minn. 325. Mississippi. The court may allow amendments " at any time before ver- dict so as to bring the merits of the controversy between the parties fairly to trial." Rev. Code 1880, 1581. That an entirely new cause of ac- tion cannot be introduced, see Miller v. Norton Bank, 34 Miss. 412. Missouri. The court may at any time before final judgment amend va- rious defects and " when the amend- ment does not change substantially the claim or defence by conforming the pleading or proceeding to the facts proved." R. S. 3567. The effect of the statute is to inhibit amendments substantially changing the claim or defense on the trial, but not before trial. Robertson v. Spring- field, etc., R. Co., 21 Mo. App. 633; Parker v. Rodes, 79 Mo. 88; Gibbons v. Steamboat, 40 Mo. 253. See, how- ever, Lumpkin v. Collier, 69 Mo. 170, holding that the provision of the statute allowing amendments of course before answer does not authorize an amendment changing an action ex de- licto into an action ex contractu. If the defendant answers an amended complaint setting up a new cause of action, it is a waiver of error in al- lowing the amendment. Holt County v. Cannon, 114 Mo. 514. The court may refuse to allow an amended answer setting up an entirely new defense to be filed on the day of trial. Lucas Market Sav. Bank v. Goldsoll, 8 Mo. App. 596; or at the close of plaintiff's evidence, Corby -v. Wright, 4 Mo. App. 443. Rev. Stat. 3060, provides that on appeal from a justice of the peace no new cause of action "not embraced or intended to be included in the original account or statement shall be added by amendment." See Clark v. Smith, 39 Mo. 498. The intention of the party must be gleaned from the face of the statement. Gregory v. Wabash, etc., R. Co., 20 Mo. App. 448. Nebraska. The court may before or after judgment amend the pleadings by correcting mistakes, inserting ma- terial allegations, etc., " or, when the amendment does not change substan- tially the claim or defense, byconform- ing the pleading or proceeding to the facts proved." Cobbey's Consolidated Stat. 1893, 4681. It has not been decided whether there is any stage of the case at which the claim or defense may be changed by amendment. See Free- man v. Webb, 21 Neb. 169. In the fol- lowing cases the amendments were held to be germane to the original complaint. Schreckengast v. Ealy, 16 Neb. 510; Carmichael v. Dolen, 25 Neb. 335; Stevens v. Sibbett, 31 Neb. 612; McKeighan v. Hopkins, 19 Neb. 33- Nevada. In Bullion M. Co. v. Croe- sus M. Co., 2 Nev. 168, the plaintiff was not allowed to introduce a new cause of action before trial. New Hampshire. A rule of court provides that "no new count or amend- ment of a declaration shall be allowed without the consent of the defendant, unless it be consistent with the orig- inal declaration and for the same cause of action." In the following cases the amendments were held to be obnoxious to this rule: French v. Ger- rish, 22 N. H. 97; Thompson v. Phelan 22 N. H. 339; Mt. Washington Hotel Co. v. Redington, 55 N. H. 386; Burn- ham v. Spooner, 10 N. H. 165; Wood v. Folsom, 42 N. H. 70; Goddard v. Perkins, 9 N. H. 488; Burt v. Kinne, 47 N. H. 361; Butterfield v. Harvell, 3 N. H. 201; Edgerlyw. Emerson, 4 N. H. 147; Lawrences. Langley, 14 N. H. 70; Pillsbury v. Springfield, 16 N. H. 565; Merrill v. Russell, 12 N. H. 74; Melvin v. Smith, 12 N. H. 462; State v. Otis, 42 N. H. 71. See also Ball v. Danforth, 63 N. H. 420; Hall v. Dodge, 38 N. H. 346. 55 1 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. New Jersey. The statute authorizes amendment " at all times" to prevent a failure of justice by reason of mis- takes and objections of form," and ex- pressly requires that all such amend- ments shall be made as are necessary for the purpose of determining the " real question in controversy between the parties." The statute is not in- terpreted according to the technical rules of pleading, but the power of amendment is held to extend to the introduction of matters which the par- ties hoped and intended to try in the cause, which may be ascertained, not from the pleadings alone, but from the evidence and the opening of the plain- tiff's counsel. Hoboken v. Gear, 27 N. J. L. 265, allowing an amendment after verdict, following the rule de- clared by the Court of Common Bench in Wilkin v. Reed, 15 C. B. 192, con- struing identical provisions in 15 & 16 Vic.,c. 76, commonly called Lord Ten- terden's Act. The same views were adhered to in Price v. New Jersey R. , etc., Co., 31 N. J. L. 229. For Eng- lish cases applying the test to Lord Tenterden's Act see also: Smith v. Knowelden, 2 M. & G. 561, 40 E. C. L. 514; Jenkins v. Phillips, 9 C. & P. 766; Foster -v. Pointer, 9 C. & P. 718; Car- marthen v. Lewis, 6 C. & P. 608, 25 E. C. L. 560; Hanbury v. Ella, i Ad. & El. 61, 28 E. C. L. 39; Billing v. Flight, 6 Taunt. 419; Leigh v. Baker, 2 C. B. N. S. 367; Storer v. Gordon, 2 Chit. Rep. 27, 18 E. C. L. 237. New York. The New York Code, 723, provides for amendments in re- spect of parties and the correction of mistakes or the insertion of allega- tions "material to the case," "or where the amendment does not sub- stantially change the claim or defense, by conforming the pleading or other proceeding to the facts proved." Before Trial. Amendments intro- ducing a new cause of action or de- fense may be allowed at any time before trial. Diamond -v, Williams- burgh Ins. Co., 4 Daly (N. Y.) 494; Marx v. Gross (Super. Ct.), 9 N. Y. Supp. 719 ; Hatch v. Central Nat. Bank, 78 N. Y. 487; Daguerre v. Orser, 3 Abb. Pr. (N. Y. C. PI.) 86, where, however, the court in its discretion denied the application; Hurlbut v. Interior Conduit, etc., Co. (Super. Ct.), 28 N. Y. Supp. 1007; Clark v. Lichtenberg (City Ct.), 26 N. Y. St. Rep. 935; Davis v. New York, etc. R. Co., no N. Y. 646; Ford v. Ford, 53 Barb. (N. Y.) 525; Schreyer v. New York, 39 N. Y. Super. Ct. 277; Roessel v. Rosenberg (City Ct.), 30 N. Y. Supp. 812, where the court held that replevin may be changed to conversion before trial, but in its discretion denied leave to amend. See also Harrington v. Slade,22 Barb. (N. Y.) 161; Macqueen v. Babcock, 13 Abb. Pr. (N. Y. Su- preme Ct.) 268; Van Ness v. Bush, 22 How. Pr. (N. Y. Supreme Ct.) 491; Union Nat. Bank v. Bassett, 3 Abb. Pr. N. S. (N. Y. Supreme Ct.) 359. Various changes in the New York Code provisions touching the subject are pointed out in Chapman v. Webb, 6 How. Pr. (N. Y. C. PI.) 390; Beards- ley v. Stover, 7 How. Pr. (N. Y. Su- preme Ct.) 294. By Amendment of Course. When a party makes an amendment under the Code provisions allowing amendments " of course," he is at liberty to intro- duce a substantially new claim or de- fense. Robertson v. Bennett, 52 How. Pr. (N. Y. Super. Ct.) 287, i Abb. N. Cas. (N. Y.) 476; Wyman v. Remond, 18 How. Pr. (N. Y. Supreme Ct.) 272; Mason v. Whitely, 4 Duer (N. Y.) 611; Jackson v. Peer, 4 Cow. (N. Y.) 418; McQueen v. Babcock, 3 Keyes (N. Y.) 428; Mussinan v. Hatton (Super. Ct.), 28 N. Y. Supp. 1006, the two cases last cited holding that all the new causes set up by amendment must be of the same class and of a class to which the summons is appropriate. On the latter point see also Hopf v. U. S. Baking Co. (Buffalo Super. Ct.), 21 N. Y. Supp. 589; Gray v. Brown, 15 How. Pr. (N. Y. Supreme Ct.) 555; Bockes v. Lan- sing, 74 N. Y. 437. Contra, Field v. Morse, 8 How. Pr. (N. Y. Supreme Ct.) 47; Kissam v. Morris, 2 Wend. (N. Y.) 259- Effect of Stipulation. A stipulation of counsel providing for the filing of an " answer and supplemental com- plaint " does not authorize the inser- tion of an entirely new cause of action. Deyo v. Morss (Supreme Ct.), 26 N. Y. Supp. 305. After Retnand for New Trial. Upon a new trial the court has the same power as if the action had never been tried. Troy, etc., R. Co. v. Tibbits, it How. Pr. (N. Y. Supreme Ct.) 168; Hopf v. U. S. Baking Co. (Buffalo Super. Ct.), 21 N. Y. Supp. 589. Com- pare Price v. Brown, 112 N. Y. 677, 21 N. Y. St. Rep. 573. 552 Of Pleadings, etc., at AMENDMENTS. Common Law, nnder Codes, etc. On the Trial. A new cause of action or defense cannot be introduced by amendment on the trial. Gaslight Co. v. Rome, etc., R. Co., 51 Hun (N. Y.) 119; Cumber v. Schoenfeld, 16 Daly (N. Y.) 454; Dexter v. Ivins, 133 N. Y. 551 ; Fisher v. Rankin, 25 Abb. N. Cas. (N. Y. Supreme Ct.) 191; Wood- ruff v. Dickie, 5 Robt. (N. Y.) 619; Van Syckels v. Perry, 3 Robt. (N. Y.) 621; Peters v. Chamberlain (Supreme Ct.), 36 N. Y. St. Rep. 1000; Freeman v. Grant (Supreme Ct.), 30 N. Y. St. Rep. 143; Bovven v. Sweeney, 63 Hun (N. Y.) 224; Baldwin v. Rood, 15 Civ. Pro. Rep. (N. Y. Supreme Ct.) 56; Law v. Pemberton (City Ct.), 29 N. Y. Supp. 605; Balch v. Wurzburner (C. PL), 29 N. Y. Supp. 62; Cushman v. Jewell, 7 Hun (N. Y.) 525; Dows v. Morrison (C. PL), 20 N. Y. Supp. 860, a case before a justice of the peace; Hong Kong, etc., Banking Corp. v. Emanuel, 63 Hun (N. Y.) 629; 17 N. Y. Supp. 790 ; Mea v. Pierce, 63 Hun (N. Y.) 400; Foley v. Schiede- matl, 63 Hun (N. Y.) 628 ; Halsey v. Trademen's Nat. Bank, 56 N. Y. Super Ct. 7; Storrs v. Flint, 46 N. Y. Super. Ct. 498; Van Cott v. Prentice, 104 N. Y. 45, affirming 35 Hun (N.Y.) 317; Graves v. Cameron, 58 How. Pr. (N. Y. C. PI.) 75; Ransom v. Wetmore, 39 Barb. (N. Y.) 104; Southwick v. Memphis First Nat. Bank, 84 N. Y. 428. See also Hempstead v. New York Cent. R. Co., 28 Barb. (N. Y.) 485; Zboynski v. Brooklyn City R. Co. (City Ct.), 30 N. Y. Supp. 540; Owen v. King (Supreme Ct.), 6 N. Y. St. Rep. 869; McLaughlin v. Webster, 141 N. Y. 76; Whittemore v. Judd L. & S. O. Co. (C. PL), 10 N. Y. Supp. 737*; Hill v. London Assur. Corp. (City Ct.), 12 N. Y. Supp. 86; Shaw v. Bryant, 65 Hun (N. Y.) 57; Bowen v. Sweeney (Supreme Ct.), 17 N. Y. Supp. 752; New York Marbled Iron Works v. Smith, 4 Duer (N. Y.) 362; Johnson v. Oppenheim. 12 Abb. Pr. N. S. (N. Y. Super. Ct.) 449, where it appears that the statute of frauds set up on the trial would be a new defense; Hendricks v. Decker, 35 Barb. (N. Y.) 298; Drake v. Siebold (Supreme Ct.), 30 N. Y. Supp. 597; Drew v. Keufer (Supreme Ct.), 30 N. Y. Supp. 733. What Stage Is Deemed " Before Trial." Where an application to amend is made on the trial and the trial is suspended and the case put over the term to enable the plaintiff to apply at special term for leave to amend, an amendment then allowed, changing the cause of action, is con- sidered as made before trial. Shannon v. Pickell (Supreme Ct.), 2 N. Y. St. Rep. 160. Exercise of Discretion. An amend- ment should not be denied merely be- cause the identity of the new and old claims is not clear beyond doubt. Campbell v. Campbell, 23 Abb. N. Cas. (N. Y. Supreme Ct.) 187. On Trial by Referee. A referee on a trial before him cannot allow an amendment constituting a new cause of action or defense. National Steamship Co. v. Sheahan, 122 N. Y. 461 ; Niagara County Nat. Bank v. Lord, 33 Hun (N. Y.) 557; Shaw v. Bryant (Supreme Ct.), 19 N. Y. Supp. 618; Robeson v. Central R. (Supreme Ct.), 28 N. Y. Supp. 104; Zoller v. Kellogg, 66 Hun (N. Y.) 194; Liver- more v. Bainbridge, 14 Abb. Pr. N. S. (N. Y. Supreme Ct.) 232 ; Case v. Phoenix Bridge Co., 19 Civ. Pro. Rep. (N. Y. Super. Ct.) 373. See supra, III, 2, d, e. To Conform to Proof. A substan- tially new claim or defense cannot be introduced after judgment to conform pleadings to proof. Egert v. Wicker, 10 How. Pr. (N. Y. Supreme Ct.) 193; Southwick v. Memphis First Nat. Bank, 84 N. Y. 420. Nor, perhaps, after the court has announced his in- tention to dismiss the complaint. Free- man v. Grant, 132 N. Y. 22. As to the allowance of such amend- ment after vacating a judgment, see Hatch v. Central Nat. Bank, 78 N. Y. 487. North Carolina. The Code of Civil Procedure authorizing amendments before and after judgment concludes as follows: "or when the amend- ment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." Code of C. P. , 132. The court has no authority to allow amendments as to parties or as to the cause of action which will make a new or substantially a new action, unless by consent of the parties. Clendenin v. Turner, 96 N. Car. 416. And it seems that permission to make such an amendment will be denied be- fore trial as well as upon the trial. Powell v. Allen, 103 N. Car. 46; Rob- bins v. Harris, 96 N. Car. 557; Ely v. Early, 94 N. Car. i; Merrill v. Mer- 553 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. rill, 92 N. Car. 657. See also Glover v. Flowers, 101 N. Car. 134; Gill v. Young, 88 N. Car. 58; McNair v. Buncombe County, 93 N. Car. 364. Compare Robinson v. Willoughby, 67 N. Car. 84. Ohio. The statute of amendments [Rev. Stat., 5114] is the same as that in North Carolina, quoted above. The form of the remedy may be changed, but not the identity of the transaction constituting the cause of complaint. Spice v. Steinruck, 14 Ohio St. 213. See also Evens v. Hall, i Handy (Ohio) 434; Ansonia Rubber Co. v. Wolf, I Handy (Ohio) 236; Delaware County v. Andrews, 18 Ohio St. 49; Whittaker's Annotated Code, p. 146, n. Oregon. Hill's Code, 101, provides for amendments at any time before the trial where there is no substantial change in the cause of action or de- fense. The power is liberally exer- cised. Garrison v. Goodale, 23 Oregon 307; Baldock v. Atwood, 21 Oregon 79- Pennsylvania. A new cause of ac- tion cannot be introduced. In addi- tion to the cases cited in the last note but one see Tatham v. Raney, 82 Pa. St. 130; Good Intent Co. v. Hartzell, 22 Pa. St. 277; Winders. Northampton Bank, 2 Pa. St. 446; Wager v. Chew, 15 Pa. St. 323; Reitzel v. Franklin, 5 W. & S. (Pa.) 33. Khode Island. Pub. Stat., 1882, c. 2io, 5, provides that amendments may be made at any time to cure " defects and want of form." The court cannot allow the substitu- tion of a new cause of action. Wilcox v. Sherman, 2 R. I. 540; Thayer v. Farrell, n R. I. 305. South Carolina. The Code, 194, provides for certain amendments be- fore or after judgment "or, when the amendment does not change substan- tially the claim or defense, by con- forming the pleading or proceeding to the facts proved." No amendment proposed during or after the trial of a case can be permit- ted if it introduces a new cause of action; but this limitation to the power of the court does not apply to motions made anterior to the trial, after as well as before the issues are made. Hall v. Woodward, 30 S. Car. 575, where an answer substantially changing the defense was allowed be- fore trial; Chamberlain v. Mensing, 51 Fed. Rep. 511; Edwards #. Cheraw, etc., R. Co., 32 S. Car. 117; Lilly v. Charlotte, etc., R. Co., 32 S. Car. 142; Trumbo v. Finley, 18 S. Car. 305; All v, Barnwell County, 29 S. Car. 161; Dunsford v. Brown, 19 S. Car. 567. See also Sullivan v. Sullivan, 24 S. Car. 474; Whaley v. Stevens, 26 S. Car. 221; Skinner v. Hodge, 24 S. Car. 165; McConnell v. Kennedy, 29 S. Car. 180; Wilbanks v. Willis, 2 Rich. (S. Car.) 108; Mason v. Johnson, 13 S. Car. 21 ; Cleveland v. Cohrs, 13 S. Car. 397; Nesbitt v. Cavender, 27 S. Car. i; Coleman v. Heller, 13 S. Car. 491. Where the original complaint does not set up a cause of action the plain- tiff cannot be permitted by any amend- ment whatever to set up a cause of action. Bleckeley v. Branyan, 28 S. Car. 449; Lilly v. Charlotte, etc., R. Co., 32 S. Car. 142. Tennessee. The Code of 1884 per- mits " material amendments at any stage of the proceedings." The practice has been to allow amendments at any stage of the case to attain the ends of justice; but the plaintiff cannot introduce a new cause of action so as to prevent the opera- tion of the statute of limitations. Trousdale v. Thomas, 3 Lea (Tenn.) 715. Texas. "The pleadings may be amended under leave of the court * * * before the parties announce themselves ready for trial and not thereafter." It is the established practice in Texas to permit the plain- tiff to amend within the time pre- scribed by abandoning the old and setting up a new cause of action. McDannell v. Cherry, 64 Tex. 177; Ballard v. Carmichael, 83 Tex. 355; Wood County v. Gate, 75 Tex. 215; Reagan v. Evans, 2 Tex. Civ. App. 35; Hunter v. Morse, 49 Tex. 219; Hopkins v. Wright, 17 Tex. 30; Irvine v. Corp. of Bastrop, 32 Tex. 485; Dailey v. Wynn, 33 Tex. 614; Wil- busch v. Taylor, 64 Tex. 53; Woods v. Huffman, 64 Tex. 98; Ross v. Korn- rumpf, 64 Tex. 390; Williams v. Ran- don, 10 Tex. 74; Whitehead v. Herron, 15 Tex. 127; Smith v. McGaughey, 13 Tex. 404, where the plaintiff was al- lowed to join a new cause of action which accrued after the commence- ment of the suit on which point see also Galveston, etc., R. Co. v. Borsky, 2 Tex. Civ. App. 545. But it will not be allowed when great confusion i:i 554 Of Pleadings, etc., at AMENDME^ TS. Common Law, under Codes, etc. the proceedings will result. Hal- comb v. Kelly, 57 Tex. 618. See also Thomas v. Browder, 33 Tex. 783, Walker v. Howard, 34 Tex. 508. And it seerns not to have been allowed in the earlier cases. Carter v. Reynolds, 6 Tex. 561; Beal v. Alexander, 6 Tex. 53i. Service on Absent Parties. All parties interested and not already be- fore the court must be served in order to be bound by the judgment on the new pleading. Wortham v. boyd, 66 Tex. 401; Morrison v. \\alker, 22 Tex. 18 ; Furlow v. Miller, 30 Tex. 28; Stewart v. Anderson, 70 Tex. 588, and Pendleton v. C.olville, 49 Tex. 525, where the original service was made by publication. If the defend- ants are in court by answer, no new service of process upon them is re- quired; but in other respects the ac- tion proceeds as a new suit. Ballard v. Carmichael, 83 Tex. 355 ; De Walt v. Snow, 25 Tex. 320. Terms of Allowance. The plaintiff must pay all costs which have accrued up to the time of the amendments. Ballard v. Carmichael, 83 Tex. 355; Hopkins v. Wright, 17 Tex. 30; White- head v. Herron, 15 Tex. 127; Williams v. Randon, 10 Tex. 74; Thoir.as v. Browder, 33 Tex. 783. But in such a case, where the costs have teen taxed, and the defendant neither ex- cepted to the amended petition nor asked for costs as a condition, he can- not complain for the first time en ap- peal that upon judgment against him he was taxed with the entire costs. Woods v. Durrett, 28 Tex. 429. Open to New Defenses. All defenses, including the statute of limitations, which have accrued at the date of the amendment, are available against the plaintiff. Wortham v. Boyd, 66 Tex. 401; American Salt Co. v. Heiden- heimer, 80 Tex. 344; Speake z: Pre- witt, 6 Tex. 252; Bell v. McDonald, 9 Tex. 378; Hopkins v. Wright, 17 Tex. 30; Whitehead v. Herron, 15 Tex. 127; Ayres v. Cayce, 10 Tex. 99; Williams v. Randon, 10 Tex. 74; Texas v. Burnett, 27 Tex. 32. Utah. The Code of Civ. Pro. 344, specifies certain amendments that may be made at any time in furtherance of justice, and provides that "the court may likewise in its discretion, after notice to the adverse party, allow * an amendment to any pleading or proceeding in other particulars." The defendant will not be allowed tc amend his cross-complaint upon the trial so as to make an important and vital change in the issues without showing proper diligence and reason- able grounds. Kelly v. Kershaw, 5 Utah 295. The case of Rhemke v. Clinton, 2 Utah 230, implies that a radical change in plaintiff's cause of action will not be allowed even before trial. Vermont. Rev. Laws, 1880, 907, provides that "the court may at any time permit either of the parties to amend a defect in the process or plead- ing upon such conditions as the court prescribes." The cause of action cannot be changed by amendment at any stage of the proceedings. Carpenter v. Gookin, 2 Vt. 495; Dana v. McClure, 39 Vt. 197; Sumner v. Brown, 34 Vt. 194 ; McDermid v. Tinkham, 53 Vt. 615; Brodek v. Hirshfield, 57 Vt. 12. A justice of the peace has no power to permit such an amendment. Emer- son v. Wilson, II Vt. 357. A new declaration filed under a rule of court is subject to the same restric- tion in this behalf as if it were filed by leave of court. Dewey v. Nicholas, 44 Vt. 24. Wisconsin. The court may upon the trial, or at any other stage before or after judgment, amend by correcting mistakes, inserting material altera- tions, etc., " or where the amendment does not change substantially the claim or defense, by conforming the plead- ing or proceeding to the facts proved." Rev. Stat., 2830. Where the object of the proposed amendment is to entirely change the cause of action, it cannot be allowed either before trial or at the trial. Ste- vens v. Brooks, 23 Wis. 196, emphasiz- ing the rule; Carmichael v. Argard, 52 Wis. 607; Stowell v. Eldred, 39 Wis. 614; Sweet -v. Mitchell, 15 Wis. 641; Geary v. Bennett, 65 Wis. 554; John- son v. Filkington, 39 Wis. 62 ; Hol- lehan v. Roughan, 62 Wis. 64 ; Ke- waunee County v. Decker, 34 Wis. 378; Shinners v. Brill, 38 Wis. 648; Newton v. Allis, 12 Wis. 378. Changing Defense on the Trial. The defendant will not be allowed to set up on the trial an entirely new sub- stantive defense. Shernecker v. Thein, n Wis. 556, where the application was made after the jury were impaneled, but before any evidence had been in- Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. b. GENERAL TESTS. It has been declared to be a fair test in determining whether a new cause of action is alleged in an amend- ment to inquire if a recovery had upon the original complaint would be a bar to any recovery under the amended complaint, 1 or if the same evidence would support both, 2 or if the same meas- ure of damages is applicable, 3 or if both are subject to the same troduced. But see Phoenix Mut. L. Ins. Co. v. Walrath, 53 Wis. 669 ; Brown v. Bosworth, 62 Wis. 542. West Virginia. The Code of 1887 provides that "the plaintiff may of right amend his declaration or bill at any time before the appearance of the defendant or after such appearance, if substantial justice will be promoted thereby." No amendment will be allowed which introduces a new and substan- tive cause of action different from that declared upon, and different from that which the party originally intended to declare upon. Snyder v. Harper, 24 W. Va. 206. See also Kuhn v. brown- field, 34 W. Va. 252. 1. Davis v. New York, etc., R. Co., no N. Y. 636, 14 N. Y. St. Rep. i, al- lowing an amendment to the com- plaint, as a recovery under the latter would bar the matter in the amend- ment. Amendments were subjected to this test and allowed in Lustig v. New York, etc., R. Co., 65 Hun (N. Y.) 547, 20 N. Y. Supp. 477 ; Coby v. Ibert (CityCt.), 25 N. Y. Supp. 998; Rhemke v. Clinton, 2 Utah 230. They were denied in Hurst v. Detroit City R. Co., 84 Mich. 539; Deyo v. Morss (Supreme Ct.), 26 N. Y. Supp. 305, 56 N. Y. St. Rep. 364. 2. If the same evidence would sup- port both, the amendment does not in- troduce a new cause of action. The result of this test controlled or influ- enced in some degree the following cases: Missouri. Lottman v. Barnett, 62 Mo. 159; Scovil v. Glasner, 79 Mo. 449; Lumpkin v. Collier, 69 Mo. 170; Hansberger v. Pacific R. Co., 43 Mo. 196; Minter v. Hannibal, etc., R. Co., 82 Mo. 128; Mitchell v. Missouri Pac. R. Co., 82 Mo. 106; Kitchen v. Mis- souri Pac. R. Co., 82 Mo. 686; Holli- day v. Jackson, 21 Mo. App. 660. Michigan. Stubly v. Beachboard, 68 Mich. 401; Hurst v. Detroit City R. Co., 84 Mich. 539; Connecticut F. Ins. Co. v. Kinne, 77 Mich. 231. Georgia. Cox v. Murphy, 82 Ga. 623; Pearsons. Reid, 10 Ga. 580. New Hampshire. Melvin v. Smith, 12 N. H. 462 ; Burnham v. Plant, 57 N. H. 41; Pillsbury v. Springfield, 16 N. H.5&5. Other States. Montgomery v. Har- rington, 58 Cal. 274; Rhemke v. Clin- ton, 2 Utah 230; Anniston, etc., R. Co. v. Ledbetter, 92 Ala. 326; Brodek v. Hirschfield, 57 Vt. 12; Collyer v. Coll- yer, 50 Hun (N. Y.) 422; Liggett v. Ladd, 23 Oregon 81 ; Texas v. Burnett, 27 Tex. 32; Willis v. DeWitt (S. Dak., 1892), 52 N. W. Rep. 1090; Wilbanks v. Willis, 2 Rich. (S. Car.) 108; Wilson v. Jamieson, 7 Pa. St. 126; Barker v. Burgess, 3 Met. (Mass.) 273; Leekins v. Nordyke & M. Co., 66 Iowa 471; Hammond v. Sioux City, etc., R. Co., 49 Iowa 450; Ohio, etc., R. Co. v. Selby, 47 Ind. 471; Steers v. Shaw, 53 N. J. L. 358. See also Skidaway Shell Road Co. v. O'Brien, 73 Ga. 655 ; Pokes v. De Vaughn, 66 Ga. 735; Levyz/. Chittenden, 120 Ind. 41; Rock- well -v. Holcomb, 3 Colo. App. i; Meeks v. Southern Pac. R. Co., 61 Cal. 149 ; Clews v. Traer, 57 Iowa 459. Compare Cotter v. Parks, 80 Tex. 539. Changing Evidence of Negligence. An action for common-law negligence in killing stock cannot be amended into an action on a statute which makes the negligence a presumption of law. Hansberger v. Pacific R. Co.. 43 Mo. 196. Dispensing with Proof of Scienter. An original declaration claiming to recover for injuries by an animal known to be vicious cannot be amended so as to allege the negligent keeping as a ground of recovery. Cox v. Murphy, 82 Ga. 623. But see Con- nell v. Putnam, 58 N. H. 335. 3. If it is not applicable, the amend- ment is a new cause of action. Scovil v. Glasner, 79 Mo. 449; Holliday v. Jackson, 21 Mo. App. 660; Liggett v. Ladd, 23 Oregon 81; Hurst v. Detroit City R. Co., 84 Mich. 539; French v. Gerrish, 22 N. H. 97 ; Skowhegan Bank v. Cutler, 49 Me. 315. But this 556 Of Pleadings, etc , at AMENDMENTS. Common Law., under Codes, etc. plea, 1 and in some cases the intention of the plaintiff when he in- stituted the suit may have a distinct potency in deciding whether an amendment constitutes an unwarranted departure. 2 Federal Follows State Practice. The rulings in a state court of last resort as to what constitutes a new cause of action will be fol- lowed by the federal courts sitting in that state. 3 c. WHAT AMENDMENTS ARE ALLOWED (i) Amplified State- ments. Amendments which only amplify the statements or prayer in the original complaint are not deemed to introduce a new cause of action. 4 is not always a decisive test. Boyd v. Harriett, 36 Vt. 9. 1. Ball v. Claflin, 5 Pick. (Mass.) 303; Goddard v. Perkins, 9 N. H. 488. See also Van de Haar v. Van Dom- seler, 56 Iowa 671. But the test is not infallible. Downer v. Shaw, 23 N. H. 125, holding that in debt on a judgment recovered in a foreign state on a promissory note the declaration might be amended by adding a count on the note. In Richardson v. Fenner, 10 La. Ann. 599, it was said that one of the tests is whether the amendment could have been cumulated with the original pleading. 2. Hoboken v. Gear, 27 N. J. L. 265; Price v. New Jersey R., etc., Co., 31 N. J. L. 229. See also Nash v. Ad- ams, 24 Conn. 33; Donahue's Appeal, 62 Conn. 370; Brackett v. Crooks, 24 N. H. 173, where an amendment was al- lowed upon plaintiff's affidavit affirm- ing his original intention; Sumner v. Brown, 34 Vt. 194; Baxter v. Shaw, 28 Vt. 569. Compare Lycoming F. Ins. Co. v. Billings, 61 Vt 312. In Wilhelm's Appeal, 79 Pa. St. I2O, it was said: "The true criterion is, as all the authorities show, did the plain- tiff so state his cause of action origi- nally as to show that he had a legal right to recover what he subsequently claims? And it makes no difference whether the new matter in the amend- ment was or was not known or thought of when the declaration was originally filed." To the same point Haley v, Hobson, 68 Me. 167. 3. West v. Smith, 101 U. S. 263. See supra, III, I, c. 4. Georgia. Lyons v. Planters' Loan, etc., Bank, 86 Ga. 485; Cox v. Murphy, 82 Ga. 623; Tumlin v. Bass Furniture Co. (Ga., 1894) 128. E. Rep. 44; Augusta R. Co. v. Andrews (Ga., 1893), 19 S. E. Rep. 713; Cooper v. Lockett, 65 Ga. 702; Hayden v. Bur- ney, 89 Ga. 715; Colley v. Gate City Coffin Co. (Ga., 1893), 18 S. E. Rep. 817; Bright v. Central City St. R. Co., 88 Ga. 535. Pennsylvania. Hunter v. Land, 81* Pa. St. 296; Schnable v. Koehler, 28 Pa. St. 181. Texas. Gulf, etc., R. Co. v. Mc- Gowan, 73 Tex. 335; Rowland v. Murphy, 66 Tex. 534; Lewis v. Dennis, 54 Tex. 487; Hanrick v. Hanrick, 63 Tex. 618; Perkins v. Wood, 63 Tex. 396; I. & G. R. Co. v. Irvine, 64 Tex. 529; Thompsons. Swearengin, 48 Tex. 555; Becker v. Gulf City St. R., etc., Co. (Tex., 1891), 15 S. W. Rep. 1094; Texas Elevator, etc., Co. v. Mitchell, 78 Tex. 64; Foster v. Smith, 66 Tex. 680; Chapman v. Sneed, 17 Tex. 428; Haynes v. Rice, 33 Tex. 167; Scoby v. Sweatt, 28 Tex. 713; Gulf, etc., R. Co. v. Wilbanks (Tex. Civ. App., 1894), 27 S. W. Rep. 302. Alabama. Phillips v. Smith, 62 Ala. 575 ; Pearsall v. McCartney, 28 Ala. no. Iowa. Hintrager v. Richter, 85 Iowa 222; Marsh v. Chicago, etc., R. Co., 79 Iowa 332. Colorado. California Ins. Co. v. Gracey, 15 Colo. 70. Connecticut. Peck v. Bacon, 18 Conn. 377; Church v. Syracuse Coal, etc., Co., 32 Conn. 372. New York. Davis -v. New York, etc., R. Co., 1 10 N. Y. 646, 14 N. Y. St. Rep. i; Wilcox v. Payne (Supreme Ct.), 28 N.Y. St. Rep. 712; McLaughlin v. Webster, 141 N. Y. 76; Nichols v. Scranton Steel Co., 137 N. Y. 480; Becker v. New York, etc., R. Co. (Su- preme Ct.), 31 N. Y. St. Rep. 750. California. Redington v. Cornwell, 90 CaL 49. Missouri. Smith v. Missouri Pac. R. Co. (District of Missouri), 56 Fed. Rep. 458. 557 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Answers are properly amendable in the same manner. 1 (2) Correcting Misdescriptions. Amendments which change the alleged date of a contract, 2 or the sum to be paid, 3 or correct a misdescription of the contract in other respects, 4 or change any Louisiana. Pickett v. Haynes, 28 La. Ann. 844. Michigan. Abbott v. Chambers, 55 Mich. 410; Canal St. Gravel Road Co. v. Paas, 95 Mich. 372. Minnesota. Bruns v. Schrieber, 48 Minn. 366. * Ohio. Jaynes v. Platt, 47 Ohio St. 262; Baltimore, etc., R. Co. v. Gibson, 41 Ohio St. 145. South Carolina. Miller v. Stark, 29 S. Car. 325; Tarrant v. Gittelson, 16 S. Car. 231; Chamberlain v. Mencing (District of S. Car.), 51 Fed. Rep. 511. Indiana. Jeffersonville, etc., R. Co. v. H'endricks, 41 Ind. 48; Levy v. Chittenden, 120 Ind. 37. North Carolina. King v. Dudley, 113 N. Car. 167. Massachusetts. Brown v. Tobias, I Allen (Mass.) 385; Townsend Nat. Bank v. Jones, 151 Mass. 454; Morton v. Fairbanks, IT Pick. (Mass.) 368 : Mixer v. Howarth, 21 Pick. (Mass.) 205; Lobdell v. Baker, 3 Met. (Mass.) 469. Maine. Chase v. Kenniston, 76 Me. 209; McGee v. McCann, 69 Me. 79; Howard v. Kimball, 65 Me. 308; Holmes v. Gerry, 55 Me. 299. New Hampshire. Moses v. Boston, etc., R. Co., 32 N. H. 534. New averments as to the manner, time, and place of the same transac- tion are not a new cause. Nash v. Adams, 24 Conn. 33. In an action for injury by wilful shooting, new allegations which relate only to the mode of inflicting the in- jury are allowable. Carmichael v. Dolen, 25 Neb. 335. In a breach of promise case, where the promise was alleged to have been made at a certain date, to which de- fendant pleaded infancy, it was proper to allow an amendment stating other promises and ratification of the first after defendant became of age. Schreckengast v. Ealy, 16 Neb. 510. A writ of scire facias alleging only the rendition of the judgment, and that execution yet remains to be done, may properly be amended by adding averments showing that the apparent satisfaction of an execution already issued was by a levy upon and sale of property subsequently claimed and held by a third person. Baxter v. Shaw, 28 Vt. 569. A plaintiff suing on a note payable to a third person or bearer may amend by inserting an averment of the char- acter of his title to the note. Bow- man v. Stowell, 21 Vt. 309. A complaint in an action for death by wrongful act in another state, which does not allege any statute in that state, may be amended on the trial by setting forth the statute. Lustig v. New York, etc., R. Co., 65 Hun (N. Y.) 547. 20 N. Y. Supp. 477. Contra, Bolton v. Georgia Pac. R. Co., 83 Ga. 659, expressly decided upon the ground that there was nothing to amend by, and conceding that the amendment would have been proper if the statute had been originally pleaded, but in a defective manner. A declaration in trover may be amended by counting on additional property taken at the same time. Has- kins v. Ferris, 23 Vt. 673. Narrowing the Complaint by amend- ment is also proper. Wilson *. John- son, i Greene (Iowa) 147. 1. Cawthorn v. Kimbell (La., 1894), 1580. Rep. 101; Bernheim v. Daggett, 12 Abb. N. Cas. (N. Y. City Ct.) 316. 2. Wilson v. Phillips, 8 Kan. 211; Bussey v. Rothschild, 27 La Ann. 316; Warren v. Ocean Ins. Co., 16 Me. 439; Bailey v. Musgrave, 2 S. & R. (Pa.) 219; Marshall First Nat. Bank v. Hosmer, 48 Mich. 200, correcting the date of a judgment; Niemarck v. Schwartz, 51 Mich. 467; Stevenson v. Mudgett, 10 N. H. 338. See also Ripley v. Hebron, 60 Me. 379. 3. Tribby v. Wokee, 74 Tex. 142; Cooper v. Bailey, 52 Me. 230. 4. Wilson v. Jamieson, 7 Pa. St. 126; Kirkner v. Com., 6 W. & S. (Pa.) 557; Wilson v. Jamieson, 7 Pa. St. 126; Walling v. Williams, 4 Tex. 427; Davis v. Saunders, 7 Mass. 62; Stevens v. Hewitt, 30 Vt. 263; Lycoming F. Ins. Co. v. Billings, 61 Vt. 310; Sublett v. Hodges, 88 Ala. 491; Ricketts v. Weeden, 64 Ala. 548; Stringer v. Waters, 63 Ala. 361; Steed v. Mc- Intyre, 68 Ala. 407; Zeigler v. David, 23 Ala. 127; Wrights. Basye, 6 Blackf. 558 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etf particular of the matter to be performed, or the time or manner of performance, so long as the identity of the matter upon which the action is founded is preserved, are not obnoxious to the rule. 1 (Ind.) 419; Cooper v. Bailey, 52 Me. 230; Cummings v. Buckfield Branch Railroad, 35 Me. 478; Starbird v. Hen- derson, 64 Me. 570; Cotton v. Stan- wood, 67 Me. 25; Hill v. Turner, 18 Me. 413; Hapgood v. Watson, 65 Me. 510; Dodge v. Haskell, 69 Me. 429; Biddeford First Nat. Bank v. McKen- ney, 67 Me. 272; Ross v. Jordan, 62 Ga. 298; Newman v. Jefferson City, etc.. R. Co., 19 Mo. App. 100; Dougan v. Turner, 51 Minn. 330. Misdescription of Instrument. In an action of covenant broken, omission to allege in the declaration that the instrument declared upon was under seal is amendable. Wing v. Chase, 35 Me. 260. In Reed v. Scott, 30 Ala. 640, and in Moore v. Christian, 31 S. Car. 337, the complaint described the instrument sued on as a promissory note, and an amendment describing it as a bond or instrument under seal was allowed. Averments that defendant "obli- gated and agreed to pay," etc., may be amended by inserting the words "in writing " and by annexing a copy of the writing referred to. Verdery v. Barrett, 89 Ga. 349. In an action of covenant brought by E. B., the plaintiff was allowed to file a new narr. setting forth an agreement under seal in the name of J. Y., agent of E. B. Druckenmiller v. Young, 27 Pa. St. 97. Changing Alleged Date. In a fore- closure suit, the plaintiff was per- mitted to amend by changing the alleged date of the maturity of the note. Jones v. Henderson, 49 Ga. 170. To Obviate a Variance. The declara- tion is amendable so as to make the instrument declared on conform to the one offered in evidence even after defendant prayed oyer and demurred for variance. Colton v. Stanwood, 67 Me. 25. Indorsements on Note. Indorsements on the note in suit, if not correctly set up, may be rectified by amend- ment. Hamilton v. Powers, 80 Mich. 313. And a note alleged to have been indorsed to plaintiff may be de- clared by an amendment to have been made payable to the plaintiff. Elliot v. Abbot, 12 N. H. 549. Place of Contract. The state where the contract was alleged to have been made may be changed by amendment. Trego v. Lewis, 58 Pa. St. 463. Description of Judgment. In debt on judgment, a misdescription of the judgment may be corrected by amend- ment. Stevens v. Hewitt, 30 Vt. 263. But in Pillsbury v. Springfield, 16 N. H. 565, the misdescription of the judgment was so radical as to be in- curable. Express and Implied Contract. In an action against a physician for mal- practice, alleging breach of an express contract, an amendment may be made setting forth the breach of an implied contract. Kuhn -v. Brownfield, 34 W. Va. 252. 1. Stevenson v. Mudgett, 10 N. H. 338; Gilman v. Gate, 56 N. H. 166; Perot v. Leeds, 13 Phila. (Pa.) 185; Cunningham v. Day, 2 S. & R. (Pa.) i; Coxe v. Tilghman, i Whart. (Pa.) 282; Smith v. Smith, 5 Pa. St. 254; Cotter -v. Parks, 80 Tex. 539; Dowling v. Blackman, 70 Ala. 303; Freeman v. Fogg, 82 Me. 408; Spencer v. Conrad, 9 Rob. (La.) 78. Particulars of Contract. In an action on the case for fraud in making shingles, the original declaration al- leged a contract on the part of the defendant to make a certain quantity for the plaintiff, and an amendment was allowed, alleging that by the contract the plaintiff was to furnish the defendant with suitable materials for making the shingles. Morton v. Fairbanks, n Pick. (Mass.) 368. In Mixer v. Howarth, 21 Pick. (Mass.) 205, the original counts were for work and labor done and materials found, and in his specification the plaintiff claimed the price of a car- riage sold and delivered. He was allowed to amend by filing a count upon an agreement by the defendant to take and pay for a carriage to be built by his order. An Action for Money Deposited does not substantially differ from an amend- ment claiming to recover the value of a check or bill of exchange sold and delivered, where the transaction was susceptible of either construction. Henderson v. Morris, 5 Oregon 24. Adding Special Count. A declaration 559 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Amendments are also allowed to correct an erroneous descrip- tion of the property which is the subject of the suit, or to which the suit relates. 1 (3) Making Allegations More Formal or Precise. The alle- gations of the complaint may be changed and others added in or- der to cure imperfections and mistakes in the mariner of stating the plaintiff's case, 2 or for the purpose of making the original on a count annexed for the price of goods sold and delivered, with a count for goods bargained and sold, may be amended by adding a special count for not accepting and paying for the same goods. Bailey v. Smith, 43 N. H. 409. It is quite customary to amend dec- larations by adding counts upon prom- ises to pay the plaintiff as acting in an official or fiduciary capacity. Smith v. Proctor, i Sandf. (N. Y.) 72; Flower v. Garr, 20 Wend. (N. Y.) 668; Megar- gell v. Hazleton Coal Co., 8 W. & S. (Pa.) 342; Stearns v. Wright, 50 N. H. 293. Changing Defendant's Capacity. In an action of trover charging defendant "as trustee," etc., the plaintiff may amend by striking out the words "as trustee." Maxwell v. Harrison, 8 Ga. 61. 1. Rowland v. Murphy, 66 Tex. 534; Lewis v. Dennis. 54 Tex. 487; Jones v. Burgett, 46 Tex. 285; Heilbron v. Heinlen, 72 Cal. 376; Leeds v. Lock- wood, 84 Pa. St. 70; Mann v. Schroer, 50 Mo. 306; Kansas City, etc., R. Co. v. Cobb (Ala., 1894), 14 So. Rep. 763: Allen v. Sallinger, 108 N. Car. 159; Rau v. Minnesota Valley R. Co., 13 Minn. 442; Sinclair v. Western N. Car. R. Co., in N. Car. 507; Cooper v. Cranberry, 33 Miss. 117. Compare Troxler v. Gibson, i Hayw. (N. Car.) 465. In Trespass, plaintiff may amend by giving a more accurate description of the premises. Cuminge v. Rawson, 7 Mass. 440; Nettleton v. Redfield, 2 Root (Conn.) 119; Box v. Lawrence, 14 Tex. 545; Haynes v. Jackson, 66 Me. 93; Gilman v. Gate, 56 N. H. 160. But if a new parcel of land be included, the amendment will be open to the statute of limitations. Atkinson v. Amador, etc., Canal Co., 53 Cal. 102. And such an amendment was denied in Robinson v. Miller, 37 Me. 312. In Trover, an amendment may be allowed adding a count for additional property which was taken at the same time, Haskins v. Ferris, 23 Vt. 673; or changing the description of the property, Heushoff v. Miller, 2 Johns. (N. Y.) 295. So in an action for conversion an allegation of demand is proper for an amendment. Hulbert v. Brackett, 8 Wash. 435. A complaint apparently in trover may be amended by adding an allega- tion of the conversion. Lord v. Pierce, 33 Me. 350. In Real Actions. In real actions, an amendment embracinga different piece of land from that described in the dec- laration is inadmissible, Wyman v, Kilgore, 47 Me. 184; unless the omis- sion was accidental, Noyes v. Richard- son, 59 N. H. 490. A writ of entry may be amended so as to limit the land demanded. Wilson v. Eaton, 5 N. H. 141. 2. Stevenson v. Mudgett, 10 N. H. 338, quoted in Gilman v. Gate, 56 N. H. 160, 166; Kirkner v. Com., 6 W. & S. (Pa.) 557; Diehl v. McGlue, 2 Rawle (Pa.) 337; Houghton v. Stowell, 28 Me. 215; Averyw. New York Cent., etc., R. Co., 106 N. Y. 142; Daley v. Boston, etc.,R.Co., 147 Mass. 101; Lanahan v. Porter, i48Mass. 596; Heridia v. Ayres, 12 Pick. (Mass ) 334; Bishop v. Baker, 19 Pick. (Mass.) 517; Myers v. Lyon, 51 Vt. 272; McCannonz/. Detroit, etc., R. Co., 66 Mich. 442. Assumpsit for Rent. A declaration in assumpsit for rent may be amended by declaring more formally for use and occupation. Bachop v. Hill, 54 Vt. 507. Action on Bill of Exchange. Pres- entation, refusal to pay, and notice may be allowed by amendment to a declaration against the drawer of a bill of exchange. Jones v. Warren, 60 Ga. 359. Waiver of Condition. And in an action on an insurance policy, an averment of the waiver of a condition therein. California Ins. Co. v. Gracey, 15 Colo. 70. See also Lewis ?. Mon- mouth Mut. F. Ins. Co., 52 Me. 492. 560 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Trespass Quare Clausum. A declara- tion for trespass quare clausum, and also for carrying away goods, may be amended by adding a count for trespass de bonis asportatis. Hill v. Penny, 17 Me. 409 ; Bishop v. Baker, 19 Pick. (Mass.) 517; Me- chanics', etc., Ins. Co. v. Spang, 5 Pa. St. 113; Burnham v. Plant, 57 N. H. 41. Compare Duncan v. Sylvester, 13 Me. 417. The date of the alleged trespass may be changed. Moore v. Boyd, 24 Me. 242; Hammatt v. Russ, 16 Me. 171. Death by Wrongful Act. In an action for death by wrongful act, the omission of necessary averments that the deceased left a parent, wife, or child may be supplied by amendment. South Carolina R. Co. v. Nix, 68 Ga. 572. See also Klemm v, New York Cent., etc., R. Co. (Supreme Ct.), 28 N. Y. Supp. 861. Amendment of Answer. A defendant may amend his answer by stating in definite form how he claims a title which he has previously asserted in a general form. Woodward v. William- son, 39 S. Car. 333. In Actions for Flowage of Land. A dec- laration alleged that the defendant by means of a dam caused the waters of a stream to overflow the plaintiff's land. An amendment adding "and the waters flowing upon and running into said land " before the words " to overflow " did not change the cause of action. Bassett v. Salisbury Mfg. Co., 28 N. H. 438. But an amendment presenting a new issue as to the man- ner in which defendant caused the overflow was held to be open to the statute of limitations, in Bunting v. Chicago, etc., R. Co., 41 Fed. Rep. 744. And in Pearson v. Reid, 10 Ga. 580, it was held that a new and dis- tinct injury caused by the overflow could not be introduced by amend- ment. See, however, on this point, International, etc., R. Co. v. Pape, 73 Tex. 501, and Shearer v. Middleton, 88 Mich. 621. In Ejectment New Demise. In ejectment in the old form the plaintiff is allowed almost as of course to amend by inserting a new demise where the proposed lessor has a sub- sisting title. Jackson v. Murray, I Cow. (N. Y.) 156; Jackson v. Travis, 3 Cow. (N. Y.) 356; Jackson v. Smith, 6 Cow. (N. Y.) 40, holding that cause must be shown by affidavit; Anony- i Encyc. PI. & Pr. 36- S mous, 2 Cai. (N. Y.) 260; Jackson v. Kough, i Cai. (N. Y.) 251, where leave to amend was given six years after service of the declaration; Den v. Ganoe, 16 N. J. L. 439; Den v. Mc- Shane, 13 N. J. L. 35; Den v. Snow- hill, 13 N. J. L. 23; Nance v. Thomp- son, i Sneed (Tenn.) 321 ; Wilson v. Wallace, 8 S. & R. (Pa.) 56; Gilt- ner v. Carrollton, 7 B. Mon. (Ky.) 680; Hume v. Langston, 6 J. J. Marsh (Ky.) 254; Tidd's Practice, 1206. But a count cannot be added on the demise of a person who died since the commencement of the action, although he was alive at the date of the demise in the proposed count. Skipper v. Lennon, Busb. (N. Car.) 189 ; Ad- derton v. Melchor, 9 Ired. (N. Car.) 349; Elliott v. Bohannon, 5 T. B. Mon. (Ky.) 121. Nor a count stating a demise after the commencement of the suit. CQX.V. Lacey, 3 Litt. (Ky.) 334. And a new demise from a different party asserting a different title sets up a new cause of action and is open to the statute of limitations. Sicard v. Davis, 6 Pet. (U. S.) 124; Jones v. Johnson, 81 Ga. 293; Dawty v. Han- sell, 20 Ga. 659. See also Gresham v. Webb, 29 Ga. 520; Smith v. Steelman, 20 N. J. L. 116. The Term of the fictitious lease may be extended by amendment. Huff v. Lake, 9 Humph. (Tenn.) 137; Maus v. Montgomery, 10 S. & R. (Pa.) 192; Ledgerwood v. Pickett, I McLean (U. S.) 143, after judgment; Baxter v. Baxter, 3 Jones (N. Car.) 303, where such leave was given in the ap- pellate court. See also English v. Register, 7 Ga. 387; Smith v. Vaughan, 10 Pet. (U. S.) 366; Tidd's Practice, 1207. Aliter after great laches and delay. Gardiner v. Wilson, 2 Yeates (Pa.) 1 86; Woods v. Galbreath, 2 Yeates (Pa.) 536. The Dale of the demise may be amended. Den v. Smith, 3 N. J. L. 710; Anonymous, 8 N. J. L. 366; Den v. Franklin, 5 N. J. L. 850 [after non- suit] ; Den v. Lanning, 9 N. J. L. 254, citing Doe v. Roe, 7 T. R. 465; Miller v. Shackleford, 4 Dana (Ky.) 264; Jackson v. Tuttle, 6 Cow. (N, Y.) 590; Meeker v. Doe, 7 Blackf. (Ind.) 169 [provided no hardship is thereby imposed on the defendant] ; Black- well v. Patton, 7 Cranch (U. S.) 471, [during the trial]; Cockshot v. Hop- kins, 2 Dall. (U. S.) 97. See alsoVree- land v. Ryerson, 28 N. J. L. 205. Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. statements more definite and precise. 1 (4) Same Allegations in Different Form. The particulars set forth in a declaration or complaint by way of inducement and preliminary to the main facts may be changed by amendment; 2 and the cause of action may be narrowed, enlarged, or fortified in varying forms to meet the varied aspects in which the pleader may anticipate its disclosure by the evidence. 3 A Misdescription of the land may be corrected by amendment. Leeds v. Lockwood, 84 Pa. St. 70; Cooper v. Ganberry, 33 Miss. 117. See also Heilbron v. Heinlen, 72 Cal. 376; Oil- man v. Gate, 56 N. H. 160; Box v. Lawrence, 14 Tex. 545 ; Cuminge v. Rawson, 7 Mass. 440. But not so as to include different land. Troxler v. Gibson, i Hayw. (N. Car.) 465. 1. Worrill v. Taylor, 27 Ga. 398; Brown v. Tobias, I Allen (Mass.) 385; Lanahan v. Porter, 148 Mass. 596; Waverly Timber & Iron Co. v, St. Louis Cooperage Co., 112 Mo. 383; Potter v. Lucas, 59 Me. 212; Knapp v. Clark, 30 Me. 244; McFadden v. Hewitt, 78 Me. 24; Newell v. Horn, 47 N. H. 379; Taylor v. Dustin, 43 N. H.493; Rollins v. Robinson, 37 N. H. 579; Ex parte Ryan, 9 Ala. 89; Taylor v. Perry, 48 Ala. 240; Cabarga v. Seeger, 17 Pa. St. 514; Gulf, etc., R. Co. v. McGowan, 73 Tex. 355; Haynes v. Rice, 33 Tex. 167; Scoby v. Siveatt, 28 Tex. 713; Foster v. Smith, 66 Tex. 680; Spencer v. McCarty, 46 Tex. 213; Hastings v. Kellogg (Tex. Civ. App., 1894), 24 S. W. Rep. 846; Texas Ele- vator, etc., Co. v. Mitchell, 78 Tex. 64; Carter v. Hosford, 48 Vt. 433; Richmond v. Second Ave. R. Co. (Super. Ct.), 29 N. Y. Supp. 588; Ne- vada County, etc., Canal Co. v. Kidd, 28 Cal. 673. Where the consideration of a prom- ise was alleged to have been exe- cuted, an amendment describing it as executory was allowed. Detroit, etc., R. Co. v. Forbes, 30 Mich. 165. In an action for killing plaintiff's horse an amendment substituting the word " mare " was not for a new cause of action. South, etc., R. Co. v. Bees, 82 Ala. 340. 2. Christian v. Columbus, etc., R. Co., 90 Ga. 124; Western Union Tel. Co. v. Way, 83 Ala. 542. 3. Mahan v. Smitherman, 71 Ala. 565; Oden v. Bonner, 93 Ala. 393; Stringer %. Waters, 63 Ala. 361; Cas- sell v. Cooke, 8 S. & R. (Pa.) 269; Smith v. Smith, 5 Pa. St. 254; Stewart v. Kelly, 16 Pa. St. 160; Bavington v. Pittsburgh, etc., R. Co., 34 Pa. St. 358; Kester v. Stokes, i Miles (Pa.) 67; Baldock v. Atwood, 21 Oregon 79; Bassett v. Salisbury Mfg. Co., 28 N. H. 438; Daley v. Gates, 65 Vt. 591; McKnight v. Cooper, 27 S. Car. 92; Chapman v. Sneed, 17 Tex. 428; Thompson i>. Swearingen, 48 Tex. 555; Silberberg v. Trilling, 82 Tex. 523; Sinsheimer v. Kahn (Tex. Civ. App., 1893), 24 S. W. Rep. 535; Kamm v. California Bank, 74 Cal. 198; Mc- Cracken v. Chicago, etc., R. Co. (Iowa, 1894), 58 N. W. Rep. 1085; Will- iamson v. Chicago, etc., R. Co., 84 Iowa 583; Seymour v. Fisher, 16 Colo. 188; Finan v. Babcock, 58 Mich. 301; People v. Judge, i Dougl. (Mich.) 434; Swan v. Nesmith, 7 Pick. (Mass.) 220; Hamill v. Phenice, 9 Iowa 525; Mathers v. Butler County, 16 Iowa 59. Avoiding Statute of Limitations. Where the declaration shows on its face that the statutory period within which the action would be barred has expired, it may be amended by alleg- ing defendant's absence from the state during that period. Hardee v. Lovett, 83 Ga. 203. Action for Enticement. A declaration for enticing away a minor daughter may be amended by adding a count for harboring and secreting and per- suading her to remain absent from her father's service. Stowe v. Hey- wood, 7 Allen (Mass.) 118. Description of Services. Where the plaintiff, suing for services rendered, described himself as -" superintend- ent," he was allowed to amend by describing himself as "general man- ager." Etowah Gold Min. Co. v. Exter, 91 Ga. 171. Action to Rescind Contract. In a suit to rescind a contract on the ground of fraud and undue influence, an amend- ment alleging that the petitioner was of weak mind, etc., was permitted. Clough v. Adams, 71 Iowa 17. Striking Out Offer. In a complaint 562 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, eto. (5) In Actions for Negligence. In suits founded on negligence, allegations of facts tending to establish the same act of negligence may properly be added by amendment. 1 (6) In Actions for Slander. In actions for slander it is within the power of the court to allow the complaint to be amended by setting out the defamatory charges in different forms, a claiming damages for the fraudulent sale of mining property and offering to return the deed, an amendment striking out the offer was allowed. Ahrens v. Adler, 33 Cal. 608. Alleging Additional Grounds. A com- plaint, in an action by the assignee of an insolvent firm against a purchaser, alleging that a sale of property by one partner was void for preferences, may be amended by adding a count alleging that it was also void because it was made in excess of the authority of its pa-tner. Carrie v. Cloverdale Bank- ing, etc., Co., go Cal. 84. 1. Central R., etc., Co. v. Kitchens, 83 Ga. 83; Smith v. Georgia R., etc., Co., 87 Ga. 764; Georgia R. Co. v. Thomas, 68 Ga. 744; Colley v. Gate City Coffin Co. (Ga., 1893), 18 S. E. Rep. 817; Rome R. Co. -v. Barnett, 89 Ga. 718; Augusta, etc., R. Co. v. Dor- sey, 68 Ga. 228; Alabama, etc., R. Co. v. Arnold, 80 Ala. 600, and Alabama, etc., R. Co. v. Thomas, 89 Ala. 294, holding, in accord with the uniform rule, that such amendments relate back to the commencement of the suit and arrest the operation of the statute of limitations at that point; Western Union Tel. Co. v. Way, 83 Ala. 542, an action for failure to deliver a telegram, the same question being involved; Alabama, etc., R. Co. v. Arnold, 80 Ala. 600; Alabama, ' etc., R. Co. v. Chapman, 83 Ala. 453; Elyton Land Co. v. Mingea, 89 Ala. 521, where ihe plaintiff, declaring generally for negligence, was permitted to amend by alleging the violation of a city or- dinance, "a new reason for the act of negligence ;" Becker v. New York, etc., R. Co. (Supreme Court), 31 N. Y. St. Rep. 750, 10 N. Y. Supp. 413; Wil- son v. Spafford (Supreme Ct.), 32 N. Y. St. Rep. 532, 10 N. Y. Supp. 649, an action against a town for negligence of its officers, the amendment alleging the negligence of a particular officer; Ehlein v. Brayton,66 Hun (N. Y.)&35, 21 N. Y. Supp. 825; Coby v. Ibert (City Ct.), 25 N. Y. Supp. 998; Greer v. Louisville, etc., R. Co. (Ky., 1893), 21 S. W. Rep. 649, where a refusal to permit such amendment was held reversible error. Alleging a Different Defect. In Smith v. Bogenschutz (Ky., 1892), 19 S. W. Rep. 667, it was held that a com- plaint alleging that a certain injury caused by the overflow of molten iron from a ladle in which it was being carried was due to the jostling of the carriers in a narrow passway might be amended so as to allege that the overflow was due to a defect in the ladle. See also Chapman v. Noble- boro, 76 Me. 427; Davis v. Hill, 41 N. H. 329, actions for injuries from de- fective highways. Mclntire v. Eastern R. Co., 58 N. H. 137. Negligence of Owner of Vicious Animal. In Connell v. Putnam, 58 N. H. 335, the declaration was in case for wrong- fully and injuriously keeping a vicious horse which attacked the plaintiff's servant, and a new count was prop- erly allowed charging negligence in permitting the horse to go at large without a keeper. But this is hardly to be reconciled with Cox v. Murphy, 82 Ga. 623. Negligence of Master. In Smith v. Missouri Pac. R. Co. (Mo.), 56 Fed. Rep. 458, an action against a master alleging negligence in employing an incompetent servant, an amendment alleging that the servant was neg- ligent and that plaintiff was not a fellow-servant was allowed. See also Kuhns -v. Wisconsin, etc., R. Co., 76 Iowa 67; Wilson v. New York, etc., R. Co. (R. I., 1894), 29 Atl. Rep. 300. Changing Plaintiffs Relation. A complaint for negligence against a carrier, the plaintiff describing him- self as a passenger, may be amended by alleging that he was being trans- ported as an employe. Kansas Pac. R. Co. v. Salmon, 14 Kan. 512; Jefferson- ville, etc., R. Co. v. Hendricks, 41 Ind. 48. See also Pennsylvania Co. v. Sloan, 125 111. 72; Atlantic, etc., R. Co. v. Laird (Cal.), 58 Fed. Rep. 760. 2. Gay v. Homer, 13 Pick. (Mass.) 535; Collyer v. Collyer, 50 Hun (N. Y.) 422; Collyer v. Collyer (Supreme Ct.), 3 N. Y. Supp. 310; Conroe v. Conroe, 563 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. or in a foreign language, 1 or by stating that the words were spoken of the plaintiff in his professional or official capacity, 3 or by changing the date of the alleged slander. 3 But an amendment setting out an essentially different slander uttered at a different time is not permissible. 4 (j) Summary Statement of the Rule. As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony. 5 47 Pa. St. 198; Geary v. Bennett, 65 Wis. 554; Summan it. Brewin, 52 Ind. 140. Adultery and Fornication. A com- plaint for charging adultery may be amended by adding a count for charging fornication by the use of the same words. Baldwin v. Souie, 6 Gray (Mass.) 327, where the amend- ment was allowed after the commence- ment of the argument. Larceny of Different Goods. In Will- iams v. Cooper, I Hill (N. Y.) 321, where the alleged slander consisted in charging plaintiff with stealing apples, an amendment alleging that defendant accused him of stealing boards was not allowed. But the amount of money charged to have been stolen may be changed. Miller v. Holmes (Super. Ct.), 19 N. Y. Supp. 701. Malpractice and Quackery. A charge of malpractice as a physician, al- though it may be amended by add- ing words of the same character, cannot be amended into a charge that the plaintiff was a quack or practiced without a diploma after the statute of limitations has attached. Weston v. Worden, 19 Wend. (N. Y.) 648. 1. Rahauser v. Schwerger Barth, 3 Watts (Pa.) 28. 2. Skinner v. Grant, 12 Vt. 456; Powers v. Gary, 64 Me. 9. 3. Beneway v. Thorp, 77 Mich. 181. 4. Hester v. Mullen, 107 N. Car. 724; Proctor v. Owens, 18 Ind. 21. See also Thompson v. Jones, 18 Ind. 476 ; Miles v. Vanhorn, 17 Ind. 245. Compare Mohr v. Lemle, 69 Ala. 180, a libel case; Daggy v. Green, 12 Ind. 303- 5. Daley v. Gates, 65 Vt. 591, citing Cassell v. Cooke, 8 S. & R. (Pa.) 268; Stewarr v. Kelly, 16 Pa. St. 160; Maxwell v. Harrison, 8 Ga. 61; Stevenson v. Mudgett, 10 N. H. 338. See also Coxe v. Tilghman, I Whart. (Pa.) 282; Strong v. State, 75. Ind. 440; Rodrique z>. Curcier, 15 S. & R. (Pa.) 81; Jacobs v. Gilreath (S. Car., 1894), 19 S. E. Rep. 308; Perot v. Leeds, 13 Phila. (Pa.) 185. In Van de Haar v. Van Domseler, 56 Iowa 671, the court, in denying leave to amend the petition, pointed out that the new and old matter could not have been joined in the same court without making the petition demurra- ble. An opposite ruling was sup- ported by stating the proposition con- versely, in Smith v. Missouri Pac. R. Co., 56 Fed. Rep. 458: "The subject- matter of the new count must be the same as of the old; it must not be for an additional claim or demand, but only a variation of the form of de- manding the same thing." Ball v. Claflin, 5 Pick. (Mass.) 303. Cited in Smith v. Palmer, 6 Cush. (Mass.) 513, where the rule was clearly stated and an amendment was allowed. See also Pillsbury v. Springfield, 16 N. H. 565. Accounting in Surrogate Conrt. In an accounting before a surrogate the ac- counting itself is the subject-matter of the proceeding, and any amendment may be allowed which does not include a transaction subsequent to the return day of the citation. In re Munzor's Estate (Sur. Ct.), 25 N. Y. Supp. 818, 4 Misc. Rep. 374. Assault and Battery. It seems that an amended complaint charging "as- sault and battery" is not wholly different from one charging " assault '*" 564 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. The question is one of acknowledged difficulty, for in a strict only. Sullivan v. Sullivan, 24 S. Car. 476. Assigning New Breaches of Covenant. Where several covenants in one instru- ment are set out, but a breach of only one is alleged, an amendment alleging the breach of another or others may be allowed. Wilson v. Widenham, 51 Me. 566; Heath v. Whidden, 24 Me. 383; Spencer v. Howe, 26 Conn. 200; Boyd v. Bartlett, 36 Vt. 9; Coxe v. Tilghman, I Whart. (Pa.) 282; Hunt v. Gaylor, 25 Ohio St. 620; Harris v. Wadsworth, 3 Johns. (N. Y.) 257. In an action on a sheriff's official bond, the plaintiff may assign new breaches of the condition of the bond after the jury is sworn. Shannon v. Com., 8 S. & R. (Pa.) 444. A Libel for Divorce a vinculo for adultery may be amended by adding a charge of extreme cruelty and praying for divorce from bed and board. An- derson v. Anderson, 4 Me. 100. Ejection from Train. A complaint for wrongfully expelling plaintiff from a train may be amended by alleging simply an ejection with unnecessary violence. Chicago, etc., R. Co. v. Bills, 118 Ind. 221. A complainant alleging that the plaintiff was wrongfully ejected from a certain train on which his ticket was good may be amended so as to show that he was ejected from another train for which he had no ticket. Brassell v. Minneapolis, etc., Railway Co. (Mich., 1894), 59 N. W. Rep. 426. A Petition on Account may be amended by setting up a draft signed by the defendant and alleging that the in- debtedness thereon is the same. Kimball v. Bryan, 56 Iowa 632. Description of Property. In an action for negligently burning "ash lumber," an amendment was allowed substitut- ing "birch" for "ash." Walker v. Fletcher, 74 Me. 142. Striking out Claim. Plaintiff may amend by striking out an illegal part of his claim if it be not inseparably connected with the rest. Boyd v. Eaton, 44 Me. 51. Loss of Services. In an action for injuries to a son, claiming damages for loss of services, an amendment claiming damages lor loss of services by his death is not a new cause of action. Bradford v. Downs, 126 Pa. St. 622. Action for Enticement. Where in an action on the case the original declara- tion charges that defendant enticed- away plaintiff's husband per quod con- sortium amisit, a new count which charges defendant with criminal con- versation with him and the same/Vr quod is allowable. Daley v. Gates, 65 Vt. 591. Allegation of Gift Inter Vivos. A com- plaint alleging a gift inter vivos may be amended by alleging a gift causa mortis. Walsh v. Bowery Sav. Bank (City Ct.), 26 N. Y. St. Rep. 95. Use and Occupation. An action for use and occupation may be changed into one of covenant on the lease. Bedford v. Terhune, 30 N. Y. 453, 27 How. Pr. (N. Y.) 422. See also Nel- son v. Webb, 54 Ala. 436. Assumpsit on a 'Bill of Exchange may be amended by inserting a count for money had and received. Cram v. Sherburne, 14 Me. 48. Qui Tarn Action. A declaration in qui tarn action embracing in one count a claim for several penalties on account of distinct violation of the statute may be amended by filing counts for each violation. Mitchell v. Tibbetts, 17 Pick. (Mass.) 298. Withdrawing Charge. In a suit by a corporation for "driving" and "booming" lumber it is proper to allow the plaintiffs to amend by with- drawing the charge for "driving." Bangor Boom Corp. v. Whiting, 29 Me. 123. Fraud Changed to Negligence. An action for false warranty of an article made to order, and for fraud in the manufacture and sale of it to the de- fendant, may be amended by charging negligence in the manufacture of it. Beers v. Woodruff & B. Iron Works, 30 Conn. 308. Setting up Quantum Meruit. Where the contract upon which an action is brought for services is void by the statute of frauds, the plaintiff may amend so as to recover on a quantum meruit. Turnow v. Hochstadter, 7 Hun (N. Y.) 80. A complaint seeking to recover the contract price for services together with benefits prevented by the de- fendant may be amended by declaring upon a quantum meruit. Cox v. Mc- Laughlin, 76 Cal. 60. See also Cope- land v. Johnson Mfg. Co. (Supreme Ct.), 3 N". Y. Supp. 42. The Ad Damnum may be changed 565 Of Pleadings, etc., at MENDMENTS. Common Law, under Codes, etc. sense almost every amendment \yhich is important may be said without constituting a new cause of action. Frankfurter v. Home Ins. Co. (City Ct.), 26 N. Y. Supp. 81; Johnson v. Brown, 57 Barb. 118 ; Arrigo v. Catalano (Super. Ct.), 27 N. Y. Supp. 995; Chamberlain v. Mensing, 51 Fed. Rep. 511 ; Harris v. Belden, 48 Vt. 478; Tassey v. Church, 4 W. & S. (Pa.) 141. See also Townsend Nat. Bank z/. Jones, 151 Mass. 454. Or the insertion of an ad dannnim where the original was left blank. Burleigh v. Merrill, 49 N. .H. 35. The Prayer for Relief may be changed. Mcllhenny v. Lee, 43 Tex. 205; Case v. Blood, 71 Iowa 632; Cook v. Chi- cago, etc., R. Co., 75 Iowa 169. Common Counts and Special Contract. A complaint for "work, labor, and services" may be amended by stating that the services were rendered under a special contract. Tarrant v. Gittel- son, 16 S. Car. 231. But not after an action of the special contract is barred by the statute of limitations. People v. Circuit Judge, 27 Mich. 138. Common indebitatus counts, upon a sale to the defendant, cannot be amended by adding counts upon a con- tract of guaranty. Brodek v. Hirsch- field, 57 Vt. 12. The common counts cannot be amended by claiming unliquidated damages for breach of a special con- tract in a lease. Burt v. Kinne, 47 N. H. 361. Neglect of Deputy. A declaration in an action against a sheriff for default of one of his deputies may be amended by adding a count for the neglect of another deputy in the same matter. Grafton Bank v. White, 17 N. H. 389- Adding Money Count. A declaration with a special count against defendants as indorsers of a promissory" note, and a count for money had and re- ceived, may be amended by a new count for money paid, the identity being preserved. Libbey v. Pierce, 47 N. H. 309. Title to Possession. Amending a pe- tition in ejectment by causing it to state that both the husband and wife are entitled to the possession, instead of the wife alone, does not change the cause of action. Hughes v. McDivitt, 102 Mo. 77. In Account Bender, a count charging defendant as bailiff for the plaintiff's land may be joined to a count charg- ing him as tenant in common with the plaintiff, and such count may be added on the trial asan amendment. M'Adam v. Orr, 4 W. & S. (Pa.) 550. Sale and Refusal to Accept. A com- plaint containing a count for goods sold and delivered cannot be amended by adding a count for the price of stock bargained and sold and which the defendant refused to accept. Mt. Washington Hotel Co. v. Redington, 55 N. H. 386. Express and Implied Contract. A com- plaint against a physician for mal- practice, alleging an express con- tract, may be amended by alleging breach of an implied contract. Kuhn v. Brownfield, 34 W. Va. 252. See also Gray -v. Bass, 42 Ga. 270; Smith v, Lippincott, 49 Barb. (N. Y.) 398. Debt and Assumpsit. A count in debt may be substituted for a count in as- sumpsit upon the same transactions. Garlock 11. Bellinger, 2 How. Pr. (N. Y.)43- Insimul Computasset. Where plain- tiff declared on a note and for money expended on an insimul computasset and for work and labor and materials, he was allowed to amend by claiming to recover on a duebill and a book account. Fairchild v. Dennison, 4 Watts (Pa.) 258. Note and Judgment. In a suit upon a note the plaintiff may amend by set- ting forth the note and a judgment ob- tained on it in another state, Thomp- son -v. Minford, n How. Pr. (N. Y. Supreme Ct.) 273; or in the same state, Teberg v. Swenson, 32 Kan. 224. In McDermid v. Tinkham, 53 Vt. 615, it was held that debt on judgment could not be amended into debt on a promissory note. And to the same effect see Latine v. Clements, 3 Ga. 426; Anderson v. Mayers, 50 Cal. 525. But in Goodrich v. Bodurtha, 6 Gray (Mass.) 323, such an amendment was allowed where the judgment had been reversed. McVicker v. Beedy, 31 Me. 314, an action on a foreign judgment is not distinguishable for principle. In Downer v. Shaw, 23 N. H. 125, debt on a foreign judgment, an amendment was allowed counting on a note upon which the judgment was rendered. Notes and Consideration Therefor. An action for money had and received may be amended by declaring on a 566 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. to introduce a cause of action upon which the plaintiff could not recover without the amendment. 1 And where an amendment is offered at a seasonable time the liberal policy of the courts will warrant a presumption in favor of its propriety. 2 d. WHAT AMENDMENTS ARE NOT ALLOWED (i) Changing Contract to Tort, and Vice Versa. It was a general rule of the common law that counts ex contractu and counts ex delicto could not be joined. 3 And it is still held even in some of the Code states that an attempt to change the nature of the action from one in tort to one in contract, 4 or vice versa, 5 is properly not an promissory note given therefor. Brackett v. Crooks, 24 N. H. 173. Under like circumstances an action on a note may be converted into an action for goods sold and delivered. Burnham v. Spooner, 10 N. H. 165. But see Lansford v. Scott, 51 Ala. 557. And compare Mahan v. Smither- man, 71 Ala. 563. In Sibley v. Young, 26 S. Car. 415, which was an action on promissory notes due, plaintiff was allowed to amend by setting up the original in- debtedness. So in Stephens v. Thomp- son, 28 Vt. 77. See also Pierce v. Wood, 23 N. H. 519. A suit against a partnership upon a note executed by one member without authority may be amended by filing a count for the original claim. Perrin v. Keene, 19 Me. 355. Where a note is not considered as payment, it is not a new cause to add a count on a note in a suit on an ac- count. Vancleef v. Therasson, 3 Pick. (Mass.) 12; Stephens v. Thomp- son, 28 Vt. 77. Adding Other Common Counts. Counts for work and labor cannot be added to counts for goods sold and delivered. Dewey v. Nicholas, 44 Vt. 24. 1. Trescott v. Baker, 29 Vt. 459; Boyd v. Bartlett, 36 Vt. 9; Kansas Pac. R. Co. v. Salmon, 14 Kan. 512; McConnell v. Leighton, 74 Me. 415. The court may allow an amendment to a declaration which does not change the cause of action, even though the action could not have been sustained on the original declaration. Skinner v. Grant, 12 Vt. 456. 2. Waterman v. Hall, 17 Vt. 128; Campbell v. Campbell, 23 Abb. N. Cas. (N. Y.) 187. 3. i Chitty PI. 223; Wilson v. Stew- art, 69 Ala. 302; Lumpkin v. Collier, 69 Mo. 170. 4. Givens v. Wheeler, 6 Colo. 149; Kewaunee County v. Decker, 34 Wis. 378; Brayton v. Jones, 5 Wis. 117, Appendix 627; Hollehan v. Roughan, 62 Wis. 64; Wilson v. Stewart, 69 Ala. 302; Hackett v. California Bank, 57 Cal. 335; Cox v. Richmond, etc., R. Co., 87 Ga. 109; People -v. Wayne Cir- cuit Judge, 13 Mich. 206; Wood v. Foster, 3 La. 338; Minor v. Wood- bridge, 2 Root (Conn.) 274; Foster v. Penry, 76 N. Car. 131 (quare). Contra, Gulp -v. Steere, 47 Kan. 746. In New York such an amendment cannot be made on the trial. Neu- decker v. Kohlberg, 81 N. Y. 296; Walter z/. Bennett, 16 N. Y. 251; An- drews v. Bond, 16 Barb. (N. Y.) 633; Storrs v. Flint, 46 N. Y. Super. Ct. 498; Baldwin v. Rood, 15 Civ. Pro. Rep. (N. Y. Supreme Ct.) 56; Mea -v. Pierce, 63 Hun (N. Y.) 400, 18 N. Y. Supp. 293; Whitcomb v. Hungerford, 42 Barb. (N. Y.) 177; Ransom v. Wet- more, 39 Barb. (N. Y.) 104. See Chap- man -v. Webb, 6 How. Pr. (N. Y. C. PL) 390. But it has been allowed before trial. Hopf v. U. S. Baking Co. (Super. Ct.), 21 N. Y. Supp. 589. 5. Kewaunee County -v. Decker, 34 Wis. 378: Mitchell v. Georgia R. Co., 68 Ga. 644; Carpenter v. Gookin, 2 Vt. 495; American Salt Co. -v. Hei- denheimer, 80 Tex. 344; Lumpkin v. Collier, 69 Mo. 170. Compare Lee v. Lee, 21 Mo. 531; Beard v. Yates, 2 Hun (N. Y.) 466; McNair v. Compton, 35 Pa. St. 23. In Robertson v. Springfield, etc., R. Co., 21 Mo. App. 633, it was held that such an amendment was permissible before trial if it related to the same transaction or tort. One who sues in contract for the proceeds of his property may amend so as to charge conversion if he were ignorant of the facts which rendered the sale a conversion when he brought 567 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. amendment, but a substitution of a cause of action different in nature and substance from that originally stated. But redundant or irrelevant allegations in tort may be struck out of a complaint based on contract without changing the cause of action. 1 (2) Changing Legal to Equitable Action, and Vice Versa. In some of the states where law and equity are administered by the same court, an action at law cannot be changed by amendment into a suit in chancery, or a bill in chancery into a declaration or complaint at law; 2 while in others the distinction between forms the suit. Smith v. Savin, 114 N. Y. 315. In Massachusetts a count in tort may be amended by adding a count in con- tract with an averment that both are for the same cause of action. Cun- ningham v. Hall, 7 Gray (Mass.) 559. 1. Field v. Morse, 8 How. Pr.(N. Y. Supreme Ct.) 47; Veeder v. Cooley. 2 Hun (N. Y.) 74; Hitchcock v. Baere, 17 Hun (N. Y.) 604; Bosworth v. Hig- gins (Supreme Ct.), 26 N. Y. St. Rep. 474, 7 N. Y. Supp. 210; Lobdell v. Baker, 3 Met. (Mass.) 469; Lane v. Cameron, 38 Wis. 603; Pierce v. Gary, 37 Wis. 232. And where the original declaration was in assumpsit, superfluous allega- tions of fraud in an amendment other- wise proper were held not to render it o-bjectionable. Cavene v. McMichael, 8 S. & R. (Pa.) 441. Substantially the same point was decided in Bogle v. Gordon, 39 Kan. 31, and Link v. Jar- vis (Cal., 1893), 33 Pac. Rep. 206. See also McAffee v. Mulkey, 40 Ga. 115. Negligence as a Breach of Contract. In an action against a common car- rier for breach of its undertaking to carry safely and deliver goods, an amendment charging that the goods were destroyed in its warehouse through its negligence was held not to change the action from one ex con- tractu to one ex delicto. St. Louis, etc., R. Co. v. Dodd (Ark., 1894), 27 S. W. Rep. 227. 2. Lullman v. Barrett, 18 111. App. 573; Petipain v. Frey, 15 La. 195. New York. Although the Code per- mits the joinder of legal and equita- ble causes of action, all the facts must be alleged which would entitle the plaintiff to relief of either kind had he sought it in separate actions; and a complaint framed solely for equitable relief cannot be changed into one for legal relief, an action for equitable relief cannot be changed into an ac- tion of ejectment. Bockes v. Lan- sing, 74 N. Y. 437, a/'g 13 Hun (N. Y.), 38. See also Sleeman v. Hotch- kiss (Supreme Ct.), 36 N. Y. St. Rep. 540; Bush v. Tilley, 49 Barb. (N. Y.) 599. Compare Zimmerman v. Dieker- hoff (Supreme Ct.), 14 N. Y. St. Rep. 595- An amendment changing a suit in equity to an action at law cannot be allowed in order to conform the plead- ings to the proof. Halsey v. Trades- men's Nat. Bank, 56 N. Y. Super. Ct. 7. Nor can an action at law be changed into one for equitable relief by an amendment of course, Gray v. Brown, 15 How. Pr. (N. Y. Supreme Ct.) 555; nor by amendment on the trial before a referee, Zoller v. Kellogg, 66 Hun (N. Y.) 194, 21 N. Y. Supp. 226. Compare Beck v. Allison, 56 N. Y. 366; Nichols v. Scranton Steel Co., 137 N. Y. 471. Wisconsin. In Lawe v. Hyde, 39 Wis. 345, it was held that a suit in equity may be changed into an action at law by consent; but whether it could be done under other circum- stances was not decided. See Tan- guay v. Felthousen. 45 Wis. 30. An action to enforce a lien for tolls on logs is considered as an action at law on a contract, and may be amended so as to demand a money judgment. Tewksbury v. Bronson, 48 Wis. 581. Carmichael v. Argard, 52 Wis. 607; Kavanagh v. O'Neill, 53 Wis. 101; Brothers v. Williams, 65 Wis. 401; Fischer v. Laack, 76 Wis. 313, and Stevens v. Brooks, 23 Wis. 196, de- cided that an action at law could not be amended into a suit in equity. See Lackner v. Turnbull, 7 Wis. 105. In Johnson v. Filkington, 39 Wis. 62, an action to enforce a mechanic's lien, it was held proper to deny leave to plaintiff to amend by claiming dam- ages for defendant's refusal to permit him to perform the contract. 568 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. of actions is so far disregarded as to permit such amendments if the identity of the subject-matter of the controversy remains the same. 1 (3) Changing Common-law Action to Statutory, and Vice Versa. Common-law liabilities and statutory remedies for the same wrong are generally deemed separate and distinct grounds of ac- tion, not to be substituted one for the other by amendment. 2 Georgia. A complaint upon a note, in the statutory form, cannot be amended by adding a count setting up that plaintiff held title to certain property as security for the payment of the debt sued on, and therefore praying that such property might be sold, and the note paid out of the pro- ceeds. Long v. Bullard, 59 Ga. 355. See Tate v. Goff, 89 Ga. 184. Ohio. An amendment to an answer demanding damages so as to demand judgment for specific performance will not be granted as a matter of course. Evens v. Hall, i Handy (Ohio) 434. 1. Newrqan v. Covenant Mut. Ins. Assoc., 76 Iowa 56; Emmet County v. Griffin, 73 Iowa 163; Barnes v. Heckla F. Ins. Co., 75 Iowa n ; Holmes v. Campbell, 12 Minn. 221; Cook v. Chicago, etc., R. Co., 75 Iowa 169; Weaver v. Kintzley, 58 Iowa 191. In Mississippi a proceeding to en- force a mechanic's lien may be amended by converting it into as- sumpsit for the price of the work done and materials furnished. Duff v. Snider, 54 Miss. 245; Prairie Lodge v. Smith, 58 Miss. 301. Nebraska. In Homan v. Hellman, 35 Neb. 414, a suit to remove a cloud Under similar circumstances, an ac- tion to enforce a mechanic's lien was converted into an action on the an- swer. Castagnino v. Balletta, 82 Cal. 250. Texas. In Nye v. Gribble, 70 Tex. 458, an action of trespass to try title, the defendant answered that a certain deed under which the plain- tiff claimed was in fact a mortgage, and the plaintiff was allowed to amend his petition so as to demand foreclosure in case the deed should be declared a mortgage. Massachusetts. In Massachusetts the statute allows an action at law to be converted into a suit in equity and vice versa. See George v. Reed, 101 Mass. 378. Hayward v. Hapgood, 4 Gray (Mass.) 437, and McRae v. Locke, 114 Mass. 96, were decided prior to the enactment of the statute. 2. A common-law action cannot be changed by amendment into an action for treble damages under a statute. Fairchild v. Dunbar Furnace Co. (Pa., 1889), 18 Atl. Rep. 443; Gregory v. Wabash, etc., R. Co., 20 Mo. App. 448; Missiouri Lumber, etc., Co. v. Zeitinger, 45 Mo. App. 114. Nor can the statutory action be changed to the common-law action. on title was converted into an action Holliday v. Jackson, 21 Mo. App. 660. of ejectment. North Carolina. In Robinson v. Will- oughby, 68 N. Car. 84, the plaintiff A similar ruling was made in Melvin v. Smith, 12 N. H. 462. Contra, Rhemke v. Clinton, 2 Utah 230. And was allowed to change his action for see Smith v. Chicago, etc., R. Co., 49 the recovery of land under a deed into one for foreclosure upon a new trial after the appellate court had ad- judged the deed to be a mortgage. In McNair v. Buncombe County, 93 N. Car. 364, it was held that a suit for an injunction could not be changed into one for a mandamus. California. Where a complaint praying for legal relief states a cause of action entitling the plaintiff to equitable relief, the court may on the trial permit the prayer to be amended so as to ask for the proper equitable Telief. Walsh v. McKeen, 75 Cal. 519. Wis. 443. In Parmelee v. Savannah, etc., R. Co., 78 Ga. 239, a suit against a com- mon carrier for excessive charges in violation of a statute, the plaintiff was not allowed to amend by declaring on a common-law liability so as to save his claim from a special statute of limitations. In Exposition Cotton Mills v. West- ern, etc., R. Co., 83 Ga. 441, an action against a carrier on a common-law liability, an amendment claiming to recover on a statutory liability was not allowed. 569 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Nor can one statutory remedy be converted into another. 1 (4) Libel, Slander, Malicious Prosecution, False Imprisonment, etc. An action for libel 2 or slander 3 cannot be changed into an action for malicious prosecution or vice versa;* nor can an action for malicious prosecution be converted into one for false imprison- ment 5 or vice versa; 6 nor an action for libel into an action for trespass to the person ; 7 nor a civil action for seduction into a civil action for rape. 8 Other instances where the allowance of an amendment, under the particular circumstances of each case, was held to transcend the power of the court are cited in the note. 9 A complaint for damages for the wrongful erection of a milldam, and for an injunction, cannot be amended so as to claim compensation under the provisions of a milldam law. New- ton v. Allis, 12 Wis. 378. An action at common law for negli- gence in killing stock cannot be amended into an action on a statute which makes the negligence a pre- sumption of law. Hausberger v. Pacific R. Co., 43 Mo. 196. A plaintiff suing for actual damages may amend by setting up wilful negli- gence so as to avail himself of a statute giving punitive- damages. Louisville, etc., R. Co. v. Case, 9 Bush (Ky.) 728. 1. Personal Liability of Stockholder. Where a complaint sought to charge defendant as a stockholder in a manu- facturing corporation because of a failure to file a certificate that the whole of the stock was paid in as re- quired by New York Laws, 1848, c. 40, 10, n, it was held to be error to per- mit an amendment seeking to enforce defendant's liability under 14 of the same act referring to the purchase of property and the issue of stock there- for. Rowell v. Janvrin, 69 Hun (N. Y.) 305, 23 N. Y. Supp. 481. See also Milliken v. Whitehouse, 49 Me. 527. For Supplies to Pauper. For a proper amendment in a statutory action for supplies furnished to a pauper by counting on liability under another statute, see Brewer v. East Machias, 27 Me. 489. Death by Wrongful Act. The statu- tory action given to personal rep- resentatives for the death of the decedent is separate and distinct from that for personal injuries which survives by statute, and the former cannot be amended into the latter. Hurst v. Detroit City R. Co., 84 Mich. 539, where the reasoning of the court is conclusive. An action for the benefit of the widow and children of a person killed by wrongful act cannot be amended by changing it into an action to re- cover damages for the benefit of the general administration. All v. Barn- well County, 29 S. Car. 161. 2. Larkin v. Noonan, 19 Wis. 82. 8. Shock v. M'Chesney, 4 Yeates (Pa.) 507- 4. Ebersoll v. Krug, 5 Binn. (Pa.) 51- 5. Cumber -v. Schoenfeld, 16 Daly (N. Y.) 454, 34 N. Y. St. Rep. 770. An action on the case for malicious prosecution cannot be changed to an action of conspiracy, at least not un- less it be for some sufficient reason. Ross v. Bates, 2 Root (Conn.) 198. Contra. It was held in Spice v. Steinruck, 14 Ohio St. 213, that the clause in the Code providing that amendments " must not change sub- stantially the claim or defense" does not refer to the form of the remedy, but to the general identity of the transaction constituting the cause of complaint, and that a petition de- manding damages for an unlawful ar- rest and containing averments making a case for malicious prosecution was amendable by striking out the aver- ments of "want of probable cause" and alleging that the same arrest was made "illegally and with force." The same conclusion was reached in People -v. Wayne Circuit Judge, 27 Mich. 164. 6. Waldheim v. Sichel, i Hilt. (N. Y.) 45. See also McConnell v. Ken- nedy, 29 S. Car. 180. 7. Ransone v. Christian, 56 Ga. 351. 8. Van de Harr v. Van Domse.er, 56 Iowa 671. 9. Charging Common Carrier as Ware- Of Pleadings, etc. , at AMENDMENTS. Common Law, under Codes, etc. e, OBJECTION, How TAKEN. An amendment introducing a new- cause of action cannot be objected to by way of answer setting houseman. Where a complaint charges a railroad company with loss of goods as a common carrier, an amendment charging it also as a warehouseman sets up a new matter or claim, and the statute of limitations may be pleaded as of the time of the amendment. Anniston, etc., R. Co. v. Ledbetter, 92 Ala. 326. See also People v. Judge, 35 Mich. 227. Compare St. Louis, etc., R. Co. v. Dodd (Ark., 1894), 27 S. W. Rep. 227. Multifariousness. An amendment will not be allowed, the effect of which is to unite a joint demand against both of the defendants with a demand against one of them. Miller v. Northern Bank, 34 Miss. 412. See also Postmaster General v. Ridgway, Gilp. (U. S.) 135- Changing Common Counts. Where original counts are for money paid and money had and received, a new count for work and labor, as the defendant's factor and agent, will not be received without defendant's consent. State v. Otis, 42 N. H. 71. Different Common Counts. A declara- tion containing a single count for work and labor cannot be amended by inserting counts for use and occupa- tion and for goods sold and delivered. Thompson v. Phelan, 22 N. H. 339. Changing Trover to Negligence. Where the original declaration was trover for certain goods, the plaintiff cannot amend by introducing a new count charging that the defendant at- tached the same goods on a writ in favor of the plaintiff and by his negli- gence lost them. Goddard v. Perkins, 9 N. H. 488. Different Interest under Different Title. Where the cause of action set out in the complaint was to recover land descended to the plaintiff from her father, the court has no power to al- low an amendment at the trial so as to allow the plaintiff to claim a differ- ent interest as heir of her sister, as this would be substantially bringing a new suit. Robbins v. Harris, 96 N. Car. 557- Changing Corporate Liability. The liability of officers of a pretended corporation on bills and notes is- sued by it is different from their liability for illegal acts as officers of a chartered corporation. Gardner v. Post, 43 Pa. St. 19. Conversion of Different Goods. In trover for converting bonds, an amendment alleging conversion of in- struments not under seal makes a new cause of action. Tryon v. Miller, i Whart. (Pa.) u. Changing Money Paid to Liability In- curred. In an action to recover sums paid by reason of the defendant's acts, an amendment showing that a portion of the amount alleged to have been paid was only a liability incurred to pay makes a new cause of action. Meeks v. Southern Pac. R. Co., 61 Cal. 149. Insurance and Contract to Insure. A declaration in the usual form upon an insurance policy cannot be amended so as to claim damages for the failure of the defendant to deliver a policy of insurance in conformity to an alleged verbal agreement. Con- necticut F. Ins. Co. v. Kinne, 77 Mich. 231. See also Hill v. London Assur. Corp. (City Ct.), 12 N. Y. Supp. 86. Compare Loring v. Proctor, 26 Me. 18. Note and Common Counts. A count upon a note for specified articles cannot be admitted as an amend- ment of a declaration for money had and received and for the hire of goods. French v. Gerrish, 22 N. H. 97. Detinue and Trover. A distinction between actions of detinue and trover is carefully preserved in the Alabama Code, and an amendment of a com- plaint which would convert the for- mer into the latter cannot be allowed. Harris v. Hillman, 26 Ala. 380. Account and Breach of Warranty. A bill for account cannot be turned by amendment into an action for breach of warranty as to the quality of goods sold by the defendant to the plaintiff, in an accounting which took place. Ayres v. Daly, 56 Ga. 119. Changing Character of Services. Where a person sues under a con- tract for services as manager, an amendment which claims to recover for services under another contract in a different capacity introduces a new cause of action. Singer Mfg. Co. v. Armstrong, 91 Ga. 745. In Trespass quare clausum for taking away the annual profits of the land, an amendment of the declaration by adding a count for a usurpation of the fee will not be permitted. Bart- lett v. Perkins, 13 Me. 87. 571 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. up such change of ground as a defense, 1 nor by general demurrer, 2 nor by objecting to evidence offered in support of the amend- ment. 3 The question must be raised, if opportunity is offered, 4 by Changing Ground of Liability. A dec- laration against a sheriff for acts of his deputy cannot be amended by adding the count charging the sheriff for his own acts, although both counts relate to the same loss. Lambard v. Fowler, 25 Me. 308. In an action against an officer for not retaining property attached to be sold to satisfy the execution, an amendment introducing a count of not returning the execution embraces a new cause of action. Annis v. Gil- more, 47 Me. 152. Where the defendant as postmaster was charged with unlawfully neglect- ing and refusing to deliver a letter, an amendment charging the same act to have been done by one not duly sworn, whom he wrongfully permitted to have the care of the mail in his office, was held to introduce a new cause of ac- tion. Bishop v. Williamson, n Me. 495- An Action for Waste cannot be amended into an action of tort in the nature of waste. Sheldon v. Smith, 97 Mass. 36. Title to Real Estate. While the orig- inal action presented an issue for in- jury to the plaintiff's cow, an amend- ment putting in issue the title to real estate is a new cause of action. Kelly v. Taylor, 17 Pick. (Mass.) 218. Different Contract by Different Agent. A declaration upon a contract al- leged to have been made by a certain agent of defendants on their behalf cannot be amended by setting up a contract materially different and al- leged to have been made by another as agent of the defendants Milburn -z/. Davis (Ga., 1893), 17 S. E. Rep. 286. Lease and Contract to Lease. An amendment claiming damages for breach of a contract to take a lease is entirely foreign to a complaint to re- cover for rent alleged to be due under the lease. Law v. Pemberton (City Ct.), 29 N. Y. Supp. 605. Open to Settled Account. It seems that in an action upon an open account, an amendment alleging a sum due on a settlement by compromise states a new cause of action. Prindle v. Aid- rich, 13 How. Pr. (N. Y. Supreme Ct.) 466. Different Title. In a suit by one heir against others, asserting absolute title to the whole of the estate, an amend- ment which is in effect a suit for the partition of the property as held by the plaintiff in common is a new cause of action. Hopkins v. Wright, 17 Tex. 30. Additional Item. In Edwards v. Cheraw, etc., R. Co., 32 S. Car. 117, it was held that an additional item could not be added to a quantity of mer- chandise sued for. See also Gulf, etc., R. Co. v. Thompson (Tex. App., 1890), 16 S. W. Rep. 174. Salary to Unliquidated Damages. An action for salary cannot be amended so as to claim damages for breach of a contract of employment. Dows v. Morrison (C. PI.), 20 N. Y. Supp. 860; Balch v. Wurzburner (C. PI.), 29 N. Y. Supp. 62. See also Diehl v. M'Glue, 2 Rawle (Pa.) 337. Negligence to Abatement of Nuisance. An amendment changing a com- plaint for negligence into one for the correction of a nuisance changes the ground of action. Fisher v. Rankin, 25 Abb. N. Cas. (N. Y. Supreme Ct.), 191. Trover to Fraud. An action for trover cannot be changed into an ac- tion for fraud and deceit. Parker v. Rodes, 79 Mo. 88. 1. Wheeler v. West, 78 Cal. 95. 2. Turner v. Roundtree, 30 Ala. 706. But see Roberts v. Germania Fire Ins. Co., 71 Ga. 478, Code of Georgia, 2794. 3. Greenwood v. Anderson, 8 Tex. 225, a case, however, where the objec- tion was based upon the ground of re- pugnancy between the amendment and the original. 4. Where the amendment to a dec- laration was filed in the office of the clerk in vacation, without notice to the defendant, and no order was taken allowing it, and at the next term, on discovering it, the defendant claimed a surprise and obtained a continuance, and at the same term filed a motion to strike the amendment from the files, it was held that the motion was not too late. Skidaway Shell Road Co. v. O'Brien, 73 Ga. 655. 572 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. objection to the filing of the amendment 1 and excepting to the allowance thereof, 2 or by motion to strike the amended pleading from the files. 3 /. WAIVER OF OBJECTION. If the defendant pleads to the amendment and tries the case on the issue thus joined, he waives his right to complain that a new cause of action was introduced, 4 even though it be one that arose after the institu- tion of the suit. 5 And a party who accepts the benefit of terms imposed upon his adversary as a condition of amending is pre- cluded from making an objection. 6 1. Hancock v. Johnson, I Met. (Ky.) 242; Wilson v. Jamieson, 7 Pa. St. 126; King v. Rea, 13 Colo. 69; Busch v. Hagenrick, 10 Neb. 415 ; Wade v. Clark, 52 T .wa 158. Form oi Objection. The objection must be specific; if it be based upon other grounds, the allowance of the amendment cannot be assigned as error on the ground that it sets up a new cause of action. Parsons Water Co. v. Hill, 46 Kan. 145; Benton v. Beattie, 63 Vt. 186. When Too Late. The objection must be made at the time when the amend- ment is allowed. It cannot avail when urged for the first time in the appel- late court, nor even at the trial. Spur- lock v. Missouri Pac. R. Co., 93 Mo. 530 ; Ansonia India Rubber Co. v. Wolf, i Handy (Ohio) 236. 2. Bachop f. Hill, 54 Vt. 507; King v. Rea, 13 Colo. 69. 3. Wheeler v. West, 78 Cal. 95 ; Turner v. Roundtree, 30 Ala. 706 ; Blodget v. Skinner, 15 Vt. 716; Me- grath v. Van Wyck, 2 Sandf. (N. Y.) 651. Compare Nevada County, etc., Canal Co. v. Kid'd, 28 Cal. 673. Motion for New Trial. In Church v. Syracuse Coal, etc., Co., 32 Conn. 372, it was held that where the motion to strike from the files is denied and the case goes to trial and a verdict is ren- dered for the plaintiff, a motion for a new trial is proper. Pleading to Substance. The defend- ant may, of course, controvert the suf- ficiency of the amendment by any proper plea. Van de Haar v. Domse- ler, 56 Iowa 671. Statute of Limitations. And the ques- tion whether the new matter is barred by the statute of limitations should be made by pleading the statute and not by a motion to strike out. Jefferson- ville. etc., R. Co. v. Hendricks, 41 Ind. 48. But the statute must be pleaded separately to the amendment, not in- cluding the original. Pennsylvania Co. v. Sloan, 125 111. 72. Verdict against Evidence. An amend- ment having been improperly allowed and the evidence not supporting the original declaration, a verdict for plaintiff was held contrary to the law and evidence, and the refusal of a new trial was held to be erroneous. Mil- burn v. Davis (Ga., 1893), 17 S. E. Rep. 286. 4. Sauter v. Leveridge, 103 Mo. 615,. where a motion to strike out was overruled and the defendant then an- swered to the merits; Scovill v. Glasner, 79 Mo. 449; Evens v. Hall, i Handy (Ohio) 434; Glover v. Flowers,, 101 N. Car. 134; Blodget v. Skinner, 15 Vt. 716; Bachop v. Hill, 54 Vt. 507; Stevens v. Hewitt [obiter], 30 Vt. 263. See also Snyder v. Harper, 24 W. Va. 212; Richards v. Smith, 98 N. Car. 509- Pleading Without Knowledge. Plead- ing to the declaration without knowl- edge of the amendment is not a waiver, nor pleading with knowledge, provided the case did not go to trial. Church v. Syracuse Coal, etc., Co. [obiter}, 32 Conn. 375. Extent of Waiver. After a defendant has pleaded the general issue and submitted to a trial of an amended petition which contains a different ground of action from the original, he cannot object to a subsequent amended petition containing matter similar to the last. Spurlock v. Missouri Pac. R. Co., 104 Mo. 658, overruling Fields v. Maloney, 78 Mo. 172. 5. Witkowski v. Hern, 82 Cal. 604. Pleading the statute of limitations is a waiver. Seymour v. Brainerd (Vt., 1894), 29 Atl. Rep. 462. But that plea would be effectual if the bar of the statute had actually attached. See infra, III, 15, a, (2). 6. Woodward v. Williamson, 39 S.. 573 Of Pleadings, etc., at AMENDMENTS. Common Law, tinder Codes, etc. g. METHOD OF DETERMINING THE QUESTION. According to the practice in some jurisdictions, the court, in order to de- termine whether a proposed amendment introduces a new cause of action, is not confined to a mere inspection of the pleadings, but may look into the evidence in the case, 1 or admit affidavits, 2 or hear parol testimony, 3 or draw the conclusion from the open- ing statement of counsel. 4 //. REVIEW OF DECISION OF TRIAL JUDGE. In the absence of statutory provisions making the decision of the trial court conclusive,* an order allowing an amendment which introduces a new cause of action, or denying an amendment upon that ground, is a proper subject for review on appeal or error. 6 7. Changing the Form of Action. At common law the allow- ance of an amendment changing the form of the action seems to be altogether discretionary, 7 provided it does not change the cause Car. 333. In that case the plaintiff, by accepting a sum of money which the defendant had been ordered to pay as a condition of amending his answer, was held estopped to dispute the validity of the order. 1. Hill v. Smith, 34 Vt. 535; Singer Mfg. Co. v. Armstrong, 91 Ga. 745; Nash v. Adams, 24 Conn. 33. 2. Gilman -v. Cate, 56 N. H. 167; Brackett v. Crooks, 24 N. H. 173; Tilton v. Parker, 4 N. H. 142. In Massachusetts the statute [Pub. Stat.,i882, p.Q74, 85] provides that the cause of action shall be deemed to be the same when it is "made to appear to the court " that it is the cause of ac- tion relied on by the plaintiff when the action was commenced. See Daley v. Boston, etc., R.Co., 147 Mass. 101. It was said in Mann v. Brewer, 7 Allen (Mass.) 202, that, prior to this enactment, the court could not go be- yond the record to determine the ques- tion. See, on this point, Gregory v. Wabash, etc., R. Co., 20 Mo. App. 448. Liberal Construction. The complaint must receive a liberal construction. Nevada County, etc., Canal Co. v. Kidd, 28 Cal. 673. Presumption after Judgment. After verdict and judgment an amendment will be deemed to have been for the same cause oi acrton unless the con- trary appears on the face of the rec- ord. Clark v. Lamb, 6 Pick. (Mass.) 512. 3. Geroux v. Graves, 62 Vt. 280; Lycoming F. Ins. Co. v. Billings, 61 Vt. 310. 4. Hoboben v. Gear, 27 N. J. L. 265. 5. In Massachusetts and Illinois the statutes make the adoption of the trial court allowing an amendment conclu- sive evidence of the identity of the cause of action. Mass. Pub. Acts, c. 167, 85; Illinois Practice Act, 23. See Fame Ins. Co. v. Thomas, 10 111. App. 545- The purpose of the enactment is " to avoid the anomaly of allowing parties to seek for a revision of conclusions on matters of fact arising on an inci- dental inquiry not involving the real merits of the case." Mannz/. Brewer, 7 Allen (Mass.) 202. 6. See supra, III, 4, a, (2). 7. Bliss Code PI. (3d ed.) 429. See also Chitty PI. (i6th Am. ed.), 219, 220; Chapman v. Webb, 6 How. Pr. (N. Y. C. PI.) 390. See also Coggs- well v. Baldwin, 15 Vt. 404. In Kirwan v. Latour, i Har. & J. (Md.) 296, the plaintiff was allowed to amend from assumpsit to trover. And in Baltimore F. Ins. Co. v. McGow- an, 16 Md. 47, from covenant to as- sumpsit. In Stebbins z>. Lancashire Ins. Co., 59 N. H. 143, an amendment was al- lowed changing the form of the action from debt to covenant, overruling Little v. Morgan, 31 N. H. 499, where the court refused to allow assumpsit to be converted into debt, and also Brown v. Leavitt, 52 N. H. 619. In Morse v. Whitcher, 64 N. H. 591, assumpsit was changed to case. Trover may be changed to assump- sit. Peaslee v. Dudley, 63 N. H. 220. In Houghton v. Stowell, 28 Me. 215, a change from debt to case was not allowed. See also McVicker v. Beedv 574 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes etc. of action. 1 In some of the states amendments changing the form of action are expressly sanctioned by statute, 2 while in others the distinc- tion between forms of action is abolished and the allowance of an amendment is determined only by its effect upon the original cause of action. 3 31 Me. 314. But trover may be amended to case. Googins v. Gil- more., 47 Me. 9; McConnell v. Leigh- ton, 74 Me. 415. In Wilcox v. Sherman, 2 R. I. 540, the plaintiff was not allowed to change his action of trover into trespass. Wil- cox v. Sherman, 2 R. I. 540. In Boston India Rubber Co. v. Hoit, 14 Vt. 92, the court refused to allow an amendment changing the form of action from assumpsit to debt. 1. See supra, III, 6, a. 2. Illinois. The Practice Act ex- pressly allows a change in the form of the action. See Fame Ins. Co. v. Thomas, n 111. App. 545; Garrity v. Hamburger Co. (111., 1891), 28 N. E. Rep. 743. In Dart v. Horn, 20 111. 212, re- plevin was changed to trover. In Chapman v. Barney, 129 U. S. 677, it appears that the federal Circuit Court sitting in Illinois allowed an amendment changing the action from assumpsit to trover, and its power to do so was recognized by the Supreme Court. Mississippi. The Code allows amendments in the form of action so as to bring the merits of the case fairly to trial. A proceeding to enforce a mechanic's lien may be changed into assumpsit for the price of the work done. Duff v. Snider, 54 Miss. 245. Pennsylvania. The Act of May 10, 1871, permits the form of action to be changed in certain cases, but not the cause of action. Tyrrill v. Lamb, 96 Pa. St. 464. Tatham v. Raney, 82 Pa. St. 130. Formerly it seems that no change in the form of action was allowed. Strock v. Little, 33 Pa. St. 409. In Perdue v. Taylor, 146 Pa. St. 163, the plaintiff being in laches was not allowed to change his action from trespass to assumpsit. Massachusetts. In Sewall v. Sullivan, 108 Mass. 355, scire facias on a recog- nizance was amended into an action on contract. In Fay v. Taft, 12 Cush. (Mass.) 448, a real action was changed to ejectment. That the form of action may be changed, see also Merrill v. Bullock, 105 Mass. 486; Mann v. Brewer, 7 Allen (Mass.) 202. In Wiley v. Yale, i Met. (Mass.) 553, in view of the laches of the plain- tiff and other circumstances the court refused to allow an amendment chang- ing trespass on the case to debt. In New Jersey every error in the form of action no matter how radical may be corrected at any stage of the action whenever it becomes necessary to enable the parties to try the matter in dispute which they contemplated trying, or to sustain the decision re- sulting from such trial. Price v. New Jersey R., etc., Co., 31 N. J. L. 234, where trespass was changed to case; as also in Price v. New Jersey R., etc., Co., 32 N. J. L. 19. In U. S. Watch Co. v. Learned, 36 N. J. L. 429, covenant was changed to assumpsit; and in Hasbrouck v. Wink- ler, 48 N. J. L. 431, case was changed to trespass. 3. Alabama. The distinction be- tween debt and assumpsit is abol- ished by the Code, and either form may be converted into the other by amendment. Knapp v. Kingsbury, 51 Ala. 563. Missouri. The cause of action can- not be changed from trover and con- version to an action for fraud and de- ceit. Parker v. Rodes, 79 Mo. 88. Nebraska. So long as the identity of the action is preserved the form is immaterial. McKeighan -v. Hopkins, 19 Neb. 33, where an action in eject- ment was changed to a petition to re- deem. New York. In Carries v. Dellay, 3 How. Pr. (N. Y. Supreme Ct.) 173, the action was changed from trespass to trover after verdict, but upon terms. In Garlock v. Bellinger, 2 How. Pr. (N. Y.) 43, debt was substituted for assumpsit. In Bigelow v. Dunn, 53 Barb. (N. Y.) 570, an amendment was allowed before trial changing an action 575 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. 8. Matter Arising Pendente Lite Amended and Supplemental Com- plaint. Matter which arose prior to the filing of the original com- plaint must be brought into the suit by amendment, but facts which occurred pending the litigation should be brought in by supplemental complaint. 1 based on fraudulent represen- tati6ns to an action for a breach of warranty. And in Chapman v. Webb, 6 How. Pr. (N. Y. C. PI.) 390, an action for goods sold was amended so as to aver that they were obtained by fraudulent representations. See also Alston v. Mechanics' Mut. Ins. Co., i How. Pr. (N. Y.) 82. In Ransom v. Wetmore, 39 Barb. (N. Y.) 104, an amendment changing the nature of the action from tort to assumpsit was denied after the case was finished. But in New York a new cause of action may be introduced by amend- ment before trial. See supra, III, 6, a, note. And as to changing tort to con- tract, and -vice versa, in New York, see supra, III. 6, d, (I). Ohio. Forms of action are abol- ished by the Code, and the only ques- tion is whether the amendment makes a new cause of action. Spice v. Stein- ruck, 14 Ohio St. 213. In Austin v. Hayden, 6 Ohio 388, case was changed to trespass. Tennessee. The form of the action may be changed by amendment, but only before trial. Smith v. Large, I Heisk. (Tenn.) 5. Wisconsin. Actions ex contractu can- not be changed into actions ex delicto, nor vice versa. Hollehan v. Roughan, 62 Wis. 64. See Lane v. Cameron, 38 Wis. 603, and supra, III, 6, d, (i), note. In State v. Baker, 38 Wis. 71, a pro- ceeding in the nature of a quo war- ranto by a private person was amended into an information in the name of the attorney-general. 1. Musselman v. Manly, 42 Ind. 462; McCaslan v. Latimer. 17 S. Car. 123; Moon v. Johnson, 14 S. Car. 434; Mul- ler v. Earle, 37 N. Y. Super. Ct. 388; Oelberman v. New York, etc., R. Co. (Supreme Ct.), 29 N. Y. Supp. 864; McCullough v. Colby, 4 Bosw. (N. Y.) 603; Berford v. New York Iron Mine (Super. Ct.), 8 N. Y. Supp. 193; Bull v. Rothschild (Supreme Ct.), 22 N. Y. St. Rep. 536; Bynum v. Burke County, 101 N. Car. 412; Clendenin v. Turner, 96 N. Car. 416; State v. Goodman, 72 N. Car. 508; Cox v. Lacey, 3 Litt. (Ky.) 334. See Rogers v. Hodgson, 46 Kan. 276; Smith v. Smith, 22 Kan. 699; Reyburn 'v. Mitchell, 106 Mo. 365; Ward v. Davidson, 89 Mo. 445; Wheat v. Catterlin, 23 Ind. 85 ; Jennison v. Governor, 47 Ala. 390. See also Bell v. Williams, 10 La. 514. Compare War- field v. Oliver, 23 La. Ann. 612. New Cause of Action. A complaint cannot be amended by setting up a new and distinct cause of action ac- cruing puis darrein continuance. Shin- ners v. Brill, 38 Wis. 648. Where pending a suit the plaintiff therein obtained a judgment against the same defendant on the same cause of action in another state, which judgment the defendant pleaded in bar, it was held that the plaintiff could not amend by declaring on the judg- ment, since it would be the introduction of a cause of action arising after the suit was brought. Barnes v. Gibbs, 31 N. J. L. 317. It is at least a proper exercise of discretion to refuse to allow an amend- ment setting up a cause of action ac- cruing after the commencement of the suit. Randall v. Christianson, 84 Iowa 501. In Texas the plaintiff may amend by joining new causes of action arising since the commencement of the suit. Smith v. McGaughey, 13 Tex. 464. Inchoate Title to Sue. Under the Minnesota statute it is necessary for a foreign administrator tofile in the prop- er probate court a duly authenticated copy of his foreign appointment be- fore the commencement of an action as such administrator; and a failure to do so cannot be cured, if proper ob- jection be taken, by filing the copy after the commencement of the suit. Fogle v. Shaeffer, 23 Minn. 304. Marriage Pending Suit. Where a feme sole marries after suit brought against her, a supplemental and not an amended complaint should be filed to make her husband a codefendant. Van Maren v. Johnson, 15 Cal. 308. Amendment to Conform to Proof. It is error to allow an amendment of the complaint to conform to the proof so as to give the plaintiff the benefit of 576 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Effect of Answering Amendment. Filing an answer to an amended complaint is not a waiver of the objection that it alleges a new cause of action which arose after the institution of the suit. 1 Effect of improper Amendment. But the pleading of matters by amended complaint which should be pleaded by supplemental complaint does not constitute sufficient cause for dismissing the action. 2 Amended and Supplemental Answer. If the defendant would avail him- self of matter arising since the action was commenced, he should do so by supplemental answer and not by amendment. 3 9, To Obviate a Variance or Conform to Proof a. To OBVIATE A VARIANCE. Where evidence is offered and objected to on the ground of a variance, and the variance is immaterial, it is the common course of the court to allow an amendment ; 4 and, under the Code, the materiality of variances is not to be determined facts occurring after this action was commenced. Fickett v. Cohn (C. PI.), 16 N. Y. St. Rep. 709. But the error will be disregarded unless the point is saved by a bill of exceptions. Lovrey v. Reef, I Ind. App. 244. Facts Fortifying Plaintiff's Eight. A plaintiff may set up new grounds of recovery which have occurred since the commencement of the suit which serve only to strengthen his original claim. Sinsheimer v. Kahn (Tex. Civ. App., 1893), 24 S. W. Rep. 533; Silber- berg v. Trilling, 82 Tex. 523; Smith v. McGaughey, 13 Tex. 414, holding that if the plaintiff has a cause of ac- tion at the commencement of the suit he may join new causes of action for the purpose of avoiding a multiplicity of suits; which point is also supported by Galveston, etc., R. Co. v. Borsky, 2 Tex. Civ. App. 545. 1. Witkowski v. Hern, 82 Cal. 604. See, however, Farrington v. Hawkins, 24 Ind. 253, where it was held that if a defendant demurs he waives the ob- jection. 2. Seevers v. Hamilton, u Iowa 66. 3. McMinn v. O'Connor, 27 Cal. 238; Sylvester v. Jerome (Colo., 1893), 34 Pac. Rep. 760. Compare State v. Moses, 20 S. Car. 465. In New York City District Courts. A supplemental pleading cannot be filed in a district court of New York city, and therefore supplemental matter may be inserted in an answer by amendment. Myers v. Rosenback (C. PI.), 29 N. Y. Supp. 34, affirming 28 N. Y. Supp. 9. Judgment Fendente Lite. That a de- fendant may by amendment of his an- swer avail himself of a judgment ren- dered in another action since the com- mencement of the suit and affecting the same, see Gaylord v. Beardsley (Supreme Ct.), 21 N. Y. Supp. 840, 66 Hun (N. Y.) 634. Set-off Acquired Fendente Lite. In Gaines v. Salmon, 16 Tex. 311, the de- fendant was allowed to amend by pleading a set-off acquired after the suit was brought. 4. Ohio, etc., R. Co. v. Selby, 47 Ind. 471; Wright v. Johnson, 50 Ind. 454; McDonald v. Yeager, 42 Ind. 388; Clark v. Phoenix Ins. Co., 36 Cal. 168; Perdue v. Aldridge, 19 Ind. 290; Nim- mon v. Worthington, I Ind. 376; War- der, etc., Co. z/.Gibbs, 92 Mich. 29; Coll- ins v. Beecher, 45 Mich. 436; Murdoch v. Finney, 21 Mo. 138; Atwood v. Gillespie, 4 Mo. 423; Tarrant v. Gitt- elson, 16 S. Car. 231; Western Union Tel. Co. v. Shelter, 71 Ga. 760; Avery v. Wilson, 26 Iowa 573; Colton v. Stanwood, 67 Me. 25; Harris v. Law- rence, i Tyler (Vt.) 156; Fallis v. Howarth, Wright (Ohio) 303; William- son v. Updike, 14 N. J. L. 270; Ballou v. Parsons, n Hun (N. Y.) 602; Stringer v. Davis, 30 Cal. 322; Bell v. Knowles, 45 Cal. 193; Carpentier v. Small, 35 Cal. 346; Hart v. British, etc., Marine Ins. Co., 80 Cal. 440; Ballston Spa Bank v. Marine Bank, 16 Wis. 120; Fobes v. School Dist., 10 Wis. 117; Gill v. Rice, 13 Wis. 549; Fery v. Pfeiffer, 18 Wis. 510; Bow- man v. Van Kuren, 29 Wis. 209; Klopper v. Bromme, 26 Wis. 372; Phillips v. Jarvis, 19 Wis. 204; Rublee v. Tibbetts, 26 Wis. 399. I Encyc. PI. & Pr. 37. 577 Of Pleadings, etc., at AMENDMENTS. Common Law. under Codes, etc. upon the inconsistenc)' between the pleadings and the evidence, but solely by proof that a party has been actually misled to his prejudice by the incorrect version of the facts given in the com- plaint ;* and even then the court may in its discretion order the pleading to be amended, upon such terms as it deems just. 2 Time to Answer Amendment. If an amendment of the complaint is allowed upon the trial to avoid an objection for variance, and the court requires the defendant to answer the amendment imme- diately, such exercise of discretion will not be reviewed unless in a clear case of abuse. 3 Where evidence constituting a variance is admitted without ob- jection, the variance may be disregarded or cured by amendment at later stages of the proceedings. 4 b. To CONFORM TO PROOF (i) The Rule Stated Power, Hoiv Derived. Where the parties to a cause have directed their proof to a certain issue consistent with the original claim or de- fense, but not within some of the allegations of the pleadings, an amendment of the latter to conform to the proof may be allowed. 5 Authority to Allow amendments of pleadings to conform to the proof is commonly conferred by specific provision in the Codes, 6 1. Place v. Minster, 65 N. Y. 89; Gaty v. Sack, 19 Mo. App. 470. Prejudice, How Proved. It is not necessary that the fact of prejudice be established by extrinsic proof; it may be apparent upon the face of the pleadings. Lyon v. Blossom, 4 Duer (N. Y.)3i8. Actual Amendment. Where the issues are to be changed in any material re- spect by the proposed amendment, as by changing or striking out averments already made, the amendment must be actually inserted in the pleadings if the opposite party so insist. Ballou v. Parsons, n Hun (N. Y.) 602. 2. New York Code, 539, may be taken as a type. Gaty v. Sack, 19 Mo. App. 470; Fox River Valley R. Co. v. Shoyer, 7 Wis. 365; Rublee v. Tibbetts, 26 Wis. 399. 3. Ellen v. Lewison, 88 Cal. 253; Tribune Pub. Co. v. Hamill, 2 Colo. App. 237. 4. See the following subsections and infra. III, 12. Directing Verdict. The Codes provide the statement to be true, by omitting to require proof of the fact, he cannot afterwards object to the absence of proof. Griggs v. Howe, 3 Keyes (N. Y.) 166. 5. See the following notes. Informal Motion. A motion "to amend the complaint so as to conform to the evidence so far as to allow the plaintiff every possible advantage un- der the decisions upon the evidence," was denied on the ground that it was too indefinite. Crooks v. Second Ave. R. Co., 66 Hun (N. Y.) 626, 20 N. Y. Supp. 813. 6. New York. Charlton v. Scoville, 68 Hun (N. Y.) 348, 22 N. Y. Supp. 883; Brotherson v. Consaulus (Supreme Ct.), 5 N. Y. St. Rep. 105; Parsons v. Sutton, 66 N. Y. 92 ; Chapman v. Carolin, 3 Bosw. (N. Y.) 456; Scott v. Lilienthal, 9 Bosw. (N. Y.) 224; Knapp v. Roche, 37 N. Y. Super. Ct. 395; Crosby z/. Watts, 41 N. Y. Super. Ct. 208; McAleer z>. Corning, 49 N. Y. Super. Ct. 522; Meyer v. Fiegel, 7 Rob. (N. Y.) 122; Smith v. Mackin, 4 Lans. that where the variance is not mate- (N. Y.)4i; Olendorf v. Cook, i Lans. rial, according to the prescribed test as stated in the text, the court may direct the facts to be found according to the (N. Y.) 37; Woolsey v. Rondout, 2 Keyes (N. Y. Ct. App.) 603; De Peys- ter -v. Wheeler, i Sandf. (N. Y.) 719 ; evidence, or may order an immediate Clayes v. Hooker, 4 Hun (N. Y.) 231; amendment, without costs. Waiver of Proof of Prejudice. Where a party states that he was misled and Kellogg v. Resse (Supreme Ct.), i N. Supp. 291; Miller v. Holmes (Super. Ct.), 19 N. Y. Supp. 701; Palmer v. the opposite party apparently assumes Jones (Supreme Ct.), 23 N. V. Supp. 578 Pf Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. the usual formulary being, " and when the amendment does not substantially change the claim or defense by conforming the 584; McComber v. Granite Ins. Co., 15 N. Y. 495; Hosley v. Black, 28 N. Y. 438; Walter v. Bennett, 16 N. Y. 251; Dows v. Green, 3 How. Pr. (N. Y. Su- preme Ct.) 377 ; Dauchy v. Tyler, 15 How. Pr. (N. Y. Supreme Ct.) 399; Fleischmann v. Stern, 61 How. Pr. (N. Y. Supreme Ct.) 124 ; Schlussel v. Willett, 34 Barb. (N. Y.) 615; Cornell v. Masten, 35 Barb. (N. Y.) 157; Vibb- ard v. Roderick, 51 Barb. (N. Y.) 616; Bonsteel v. Vanderbilt, 21 Barb. (N. Y.) 26; Smith v. Glens Falls Ins. Co., 66 Barb. (N. Y.) 556; Field v. Van Cott, 15 Abb. Pr. N. S. (N. Y. C. PL) 349; Hart v. Hudson, 6 Duer (N. Y.) 294; Palmer v. Jones (Supreme Ct.), 53 N. Y. St. Rep. 355; Cargain v. Everett (Supreme Ct.), 42 N. Y. St. Rep. 618 ; Magee v. Troy, 48 Hun (N. Y.) 383; Lounsbury v. Purdy, 18 N. Y. 515 ; Fallen v. Lawler, 102 N. Y. 233; Davis v. Smith, 14 How. Pr. (N. Y. Supreme Ct.) 187; Evarts v. U. S. Mut. Accident Assoc. (Su- preme Ct.), 40 N. Y. St. Rep. 878; Reck v. Phcenix Ins. Co., 3 Civ. Pro. Rep. (N. Y. Supreme Ct.) 376; Lettman v. Ritz, 3 Sandf. (N. Y.) 734; Page v. Voorhies (City Ct.), 16 N. Y. Supp. 101 ; Wilson v. Spafford (Su- preme Ct.), 32 N. Y. St. Rep. 332, 10 N. Y. Supp. 649; Romeyan v. Sickles, 108 N. Y. 650, i Silv. (N. Y.) 594; Therasson v. Peterson, 22 How. Pr. (N. Y. Supreme Ct.) 98; Elting v. Dayton, 67 Hun (N. Y.) 425, 22 N. Y. Supp. 154, where it was held reversible error to refuse to allow plaintiff to amend his complaint, which alleged performance of a contract, so as to conform to proof of a waiver of strict perform- ance; Newerf v. Jebb (Supreme Ct.), 6 N. Y. Supp. 581, another case of re- versible error for refusal to allow an amendment of the complaint; Liver- pool, etc., Ins. Co. v. Gunther (Dis- trict of New York), 116 U. S. 113. Wisconsin. Davis v. Henderson, 20 Wis. 520; Flanders v. Cottrell, 36 Wis. 564; City Bank v. McClellan, 21 Wis. 112; Muzz v. Ledlie, 23 Wis. 445; Sa- bine v. Fisher, 37 Wis. 376 ; North- western Union P. Co. v. Shaw, 37 Wis. 655; Buckland v. Wilson, 28 Wis. 581; Smith -v. Schulenberg, 34 Wis. 41; Matthews v. Baraboo, 39 Wis. 674; Horneffer v. Duress, 13 Wis. 603; Stacy v. Bryant, 73 Wis. 14; State v. Pierce County, 71 Wis. 321; Edleman v. Kidd, 65 Wis. 18; Hill v. Chipman, 59 Wis. 21 1 ; Pierce v. Kneeland, .5 Wis. 672; Charnley v. Honig, 74 Wis. 163, and Edson v. Hayden, 18 Wis. 627, wheu it was held reversible error to refuse to allow an amendment to the complaint; Schumaker v. Hoeveler, 22 Wis. 43; Pacquette v. Pickness, 19 Wis. 219; Hodge v. Sawyer, 34 Wis. 397; K v. H , 20 Wis. 239; Hibbard v. Peek, 75 Wis. 619; Thomas v. Hatch, 53 Wis. 296; McWhinnee v. Martin, 77 Wis. 182. Alabama. Burkham v. Mastin, 54 Ala. 122; Englehardt v. Clanton, 83 Ala. 336; Godbold v. Blair, 27 Ala. 592, where a new plaintiff was added by amendment. California. Hibernia Sav., etc., Soc. v. Jones, 89 Cal. 507; Valencia v. Couch, 32 Cal. 339, after motion for nonsuit; Pico v. Pico, 56 Cal. 453; Kamm v. California Bank, 74 Cal. 191, pending a motion for nonsuit; Drew v. Hicks (Cal., 1894), 35 Pac. Rep. 563, where it was held reversible error to refuse to allow an amend- ment of the answer; Jackson v. Jack- son, 94 Cal. 446. Indiana. Levy v. Chittenden, 120 Ind. 37; Stanton v. Kenrick (Ind. ,1893), 35 N. E. Rep. 19, where the name of a coplaintiff was struck out; Sandford Tool, etc., Co. v. Mullen, i Ind. App. 204; Sipe v. Sipe, 14 Ind. 477; Smith v. Flack, 95 Ind. 116; Leib v. Butterick, 68 Ind. 199. Colorado. Gwynn v. Butler, 17 Colo. 114; Tribune Pub. Co. v. Hamill, 2 Colo. App. 237; Martin v. Simmons; II Colo. 511. Kentucky. Carter v. West (Ky., 1892), 19 S. W. Rep. 592; Taylor v. Arnold (Ky., 1891), 17 S. W. Rep. 361; Kearney v. Covington, i Met. (Ky.) 339, holding it reversible error not to allow the complaint to be amended. Missouri. Collins v. Glass, 46 Mo. App. 297; Kerr v. Bell, 44 Mo. 120; McMurry z>. Martin, 26 Mo. App. 437; Fulkerson v. State, 14 Mo. 49, Callaghan v. M'Mahan, 33 Mo. in; Riddles v. Aikin, 29 Mo. 453; Stephens v. Frampton, 29 Mo. 263; Irwin v. Chiles, 28 Mo. 576. Nebraska. Ward v. Parlin, 30 Neb. 376; Klosterman v. Olcott, 25 Neb. 382; Whipple v. Fowler (Neb., 1894), 579 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. pleadings to the facts proved." But the practice of allowing amendments under such circumstances antedates the Codes, 1 60 N. W. Rep. 15; Catron v. Shepherd, 8 Neb. 308; Evarts v. Smucker, 19 Neb. 41. Kansas. Excelsior Mfg. Co. v, Boyle, 46 Kan. 202; Wilcox, etc., Or- gan Co. v. Lasley, 40 Kan. 521; Mis- souri Pac. Ry. Co. v. McCally, 41 Kan. 639; School Dist. v. Dudley, 28 Kan. 160; Fitzgerald v, Hollan, 44 Kan. 499. Iowa. Thomson v. Wilson, 26 lor i 120; Tiffany v. Henderson, 57 Iowa 490, where it was held to be reversible error not to allow an amendment of the petition after argument of counsel; Ellis v. Lindley, 37 Iowa 334; Andrews v. Mason City, etc., R. Co., 77 Iowa 669; Blandon v. Glover, 67 Iowa 615, where it was said that such amend- ments are encouraged ; Thomas v. Brooklyn, 58 Iowa 438 ; Davis -v. Chicago, etc., R. Co., 83 Iowa 744; Larkin v. McManus, 81 Iowa 723; George v. Swafford, 75 Iowa 491; Ball v. Keokuk, etc., R. Co., 71 Iowa 306; Correll v. Glasscock, 26 Iowa 83. South Carolina. Ahrens v. State Bank, 3 S. Car. 401. Arkansas. Caldwell v. Meshew, 53 Ark. 263, an amendment of the complaint after the cause had been submitted for a year ; Trippe v. Du Val, 33 Ark. 811; McMurray v. Boyd, 58 Ark. 504, where it was held reversible error to refuse to allow an amendment to the answer. Minnesota. Dougan v. Turner, 51 Mo. 330; Rau v. Minnesota Valley R. Co., 13 Minn. 442; Cairncross v. Mc- Grann, 37 Minn. 130. Ohio. Spice v. Steinruck, 14 Ohio St. 213; Hoffman v. Gordon, 15 Ohio St. 217; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345. Mississippi. Miller v. Northern Bank, 34 Miss. 412. Nevada. McCausland v. Ralston, 12 Nev. 195. South Dakota. Jenkinson v. Ver- million (S. Dak., 1892), 52 N. W. Rep. 1066, and Yetzer v. Young (S. Dak., 1892), 52 N. W. Rep. 1054, where it was held reversible error to refuse to allow an amendment of the complaint. Oregon. Cook v. Croisan (Oregon, 1894), 36 Pac. Rep. 532, reversible error for refusal to allow amendment. Georgia. Lathrop v. Adkisson, 87 Ga. 339. North Carolina. Brown v. Mitchell (N. Car., 1889), 9 S. E. Rep. 702. Montana. Williston v. Camp, 9 Mont. 88; Wise v. Jefferis (District of Montana), 51 Fed. Rep. 641; Wormall v. Reins, i Mont. 627. New Mexico. Berry v. Hull (N. Mex., 1892), 30 Pac. Rep. 936. Utah. Walton v. Jones, 7 Utah 462. West Virginia. Travis v. Peabody Ins. Co., 28 W. Va. 583. Harmless Error. An amendment of a complaint to conform to the evi- dence, even though erroneously al- lowed, is not a ground for setting aside the judgment founded on it where such evidence tended to estab- lish another cause of action contained in the complaint, and the defendant was therefore not prejudiced. Rob- ertson v. Robertson, 9 Daly (N. Y.)44. 1. New York. In Flower v. Garr (1839), 20 Wend. (N. Y.) 668, which was an action of assumpsit for money had and received brought by executors counting upon promises to the tes- tator, an amendment was allowed after a report of referees by permitting the plaintiffs to allege the promises to have been made to them as executors, it appearing on the hearing that the moneys were received by the defend- ant subsequent to the death of the testator, though upon a retainer an- terior to that time. The court said : "There is no pretence that the de- fendant has been misled. * * * He has made his defense as fully as he could ever hope to make it if a new trial were granted. Under such cir- cumstances amendments have often been allowed after verdict, and for the purpose of upholding it. Lyon v. Burtis, 18 Johns. (N. Y.) 510; Sargent v. Dermison, 2 Cow. (N. Y.) 515; Rees v. Overbaugh, 4 Cow. (N. Y.) 124; Mott v. Jerome, 7 Cow. (N. Y.) 518." See also the opinion of the court in Miller v. Watson, 6 Wend. (N. Y.) 506; Davis v. Smith, 14 How. Pr. (N. Y. Supreme Ct.) 187. Other States. Christine v. Whitehill (1827), 16 S. & R. (Pa.) 98; Reeside v. Hadden, 12 Pa-. St. 243; Downing v. Lindsay, 2 Pa. St. 382; Hill v. Has- kins (1829), 8 Pick. (Mass.) 83; Mont- gomery v. Maynard, 33 Vt. 450; Lewis v. Locke, 41 Vt. 14; Harris v. Law- rence ; I Tyler (Vt.) 156. 580 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. is not confined to the Code states, 1 and is authorized by general provisions for the amendment of defects in pleadings in further- ance of justice. 2 Allowance by Referee. Where a referee has the same powers as the court in respect of allowing amendments at the trial, he may permit the pleadings to be conformed to the facts proved. 3 (2) At What Stage of Proceedings. An amendment to con- form to the proof is usually made after the evidence is closed ; 4 but it may be made after the argument of counsel, 5 or after In Texas. The Texas statute provid- ing that pleadings may be amended before the parties announce ready for trial, but not thereafter[see infra, III, II, ], a petition cannot be amended so as to conform to proofs. Missouri Pac. R. Co. v. Howe (Tex. App., 1891), 15 S. W. Rep. 198. But see Western Union Tel. Co. v. Bowen, 84 Tex. 476, where it was held that as the defendant did not ask for a continuance upon an amendment of the complaint, he had no ground to claim prejudice. The case is cited in connection with remarks pertinent to the subject in Guinn v. O'Daniel, 5 Tex. Civ. App. 112. 1. New Hampshire. Pickering v. De Rochemont, 45 N. H. 67. In Peaslee v. Dudley, 63 N. H. 220, the facts appeared upon the trial of an action of trover that the plaintiff was entitled to recover for the same cause in an action of assumpsit; and the court, declining to consider whether trover could be maintained, granted leave to the plaintiff to amend by join- ing a count in assumpsit, and there- upon ordered judgment. Michigan. Foley v. Riverside Storage, etc., Co., 85 Mich. 7, where an amendment of the complaint was held not only to be proper, but that it was the positive duty of the court to allow it. Shearer v. Middleton, 88 Mich. 621; Portsmouth Sav. Bank v. Hart, 83 Mich. 646; Cummin v. Wil- cox, 47 Mich. 501; Johnson v. Spear, 82 Mich. 453; Wallace -v. Detroit City R. Co., 58 Mich. 231; Keystone Lumber, etc., Mfg. Co. v. Jenkinson, 69 Mich. 220. Massachusetts. Denham v. Bryant, 139 Mass, no; Demingz/. Darling, 148 Mass. 504; Batchelder v. Hutchinson (Mass., 1894), 37 N. E. Rep. 452; Cleaves v. Lord, 3 Gray (Mass.) 66; Augur Steel Axle, etc., Co. v. Whitt- ier, 117 Mass. 451; Fenton v. Lord, 128 Mass. 466, where it was held th"t 58 plaintiffs might amend by joining an- other party. Illinois. McCollom v. Indianapolis, etc., R. Co., 94 111. 539; Carpenter v. First Nat. Bank, 19 111. App. 549. New Jersey. Willis v. Fernald, 33 N. J. L. 206; McAndrews v. Tippett, 39 N. J. L. 105; American L. Ins. Co. v. Day, 39 N. J. L. 89; Westervelt v. Demarest, 46 N. J. L. 40; Ware v. Millville F. Ins. Co., 45 N. J. L. 177; Finegan v. Moore, 46 N. J. L. 602. 2. Bamberger v. Terry, 103 U. S. 40, where the court said: "All that had been done was to present by the pleadings fairly and on the merits the controversy as it had actually been tried." There the case had been tried by the court by stipulation. The de- fendant put in a general denial to the amended declaration and demanded a jury trial, and it was held that the court had a discretionary ppwer to re- fuse it. In this connection The Tre- molo Patent, 23 Wall. (U. S.) 518, although an equity case, may be use- fully consulted. See also the cases cited in the preceding note. Time to Answer Amendment. There is no error in refusing time to answer an amendment made to the complaint to conform it to the facts proved. George v. Swafford, 75 Iowa 491. 3. Merriam v. Wolcott, 61 How. Pr. (N. Y. Supreme Ct.) 377; McLaughlin v. Webster, 141 N. Y. 76; Knapp v. Fowler, 30 Hun (N. Y.) 512; Chapin v. Dobson, 78 N. Y. 74; Crismon v. Deck, 84 Iowa 344. See supra, III, *./ 4. See the cases cited in the notes to the preceding paragraphs. Reswearing the Jury. It is not error to refuse to reswear the jury when the complaint is amended to conform to proofs after the evidence is closed, if a new issue is not thereby tendered. Sandford Tool, etc., Co. v. Mullen, I Ind. App. 204. 5. Correll v. Glasscock, 26 Iowa 83, Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. verdict 1 or judgment ; 2 but only for the purpose of sustaining the judgment, not to reverse it; 3 or in the appellate court the amendment may be regarded as made. 4 where it was held to be no objection Where the value of services sued that the amendment was not actually for is found to be more than the filed until after verdict. Tiffany v. amount alleged in the complaint, the Henderson, 57 Iowa 490; Smith v. latter cannot be amended on appeal to Howard, 28 Iowa 51. conform to the findings. Perkins v. 1. Colton -v. King, 2 Allen (Mass.) West Coast Lumber Co. (Cal.), 1893, 317; Denham v. Bryant, 139 Mass, no; 33 Pac. Rep. 1118. Fenton v. Lord, 128 Mass. 466; Kim- 4. Michigan. Warder, etc., Co. v. ball v. Ladd, 42 Vt. 747; Thomas Gibbs, 92 Mich. 29; Enright v. Stand- v. Hatch, 53 Wis. 296; Evarts v. ard L., etc., Ins. Co., 91 Mich. 238; Smucker, 19 Neb. 41; Thomsons. Wil- Smith v. Pinney, 86 Mich. 484. son, 26 Iowa 120; Davis v. Chicago, Wisconsin. Hodge -v. Sawyer, 34 etc., R. Co., 83 Iowa 744; Ball v. Wis. 397; Trowbridge v. Barrett, 30 Keokuk, etc., R. Co., 71 Iowa 306; Wis. 661; Miller v. Spaulding, 41 Wis. Russell v. Turner, 62 Me. 496; Trippe 221; Goff v. Outagamie County, 43 v. Du Val, 33 Ark. 8n; Brown v. Wis. 55; Wittman v. Watry, 45 Wis. Mitchell, 102 N. Car. 347, where the 491; McKinney v. Jones, 55 Wis. 39; complaint was amended by striking Murray v. Scribner, 74 Wis. 602. out one of the defendants; Emerson Illinois. Law v. Fletcher, 84111.45. v. Bleakley, 5 Abb. Pr. N. S. (N. Y. New York. Fallen v. Lawler, 102 Ct. App.) 350; Lamb v. Camden, etc., N. Y. 233; Clark v. Dales, 20 Barb. R. & T. Co.. 2 Daly (N. Y.) 454; Rees (N. Y.) 42; Hunter v. Hudson River v. Overbaugh, 4 Cow. (N. Y.) 124, on Iron, etc., Co., 20 Barb. (N. Y.) 493; a motion for a new trial; Smith v. Pratt v. Hudson River R. Co., 21 N. Glens Falls Ins. Co., 66 Barb. (N. Y.) Y. 305; Harris v. Tumbridge, 83 N. Y. 556; Evarts v. U. S. Mut. Accident 92, 8 Abb. N. Cas. (N. Y.) 291; Bar- Assoc., 61 Hun (N. Y.) 624, 16 N. Y. tholomew v. Lyon, 67 Barb. (N. Y.) Supp. 27, 40 N. Y. St. Rep. 878, on 86; Listman v. Hickey (Supreme Ct.), motion for a new trial on case and 19 N. Y. Supp. 880; Snyder v. Snyder, exceptions. See also Every v. Mer- 4 Cow. (N. Y.) 394; Hudson v. Swan, win, 6 Cow. (N. Y.) 360. Compare Joy 7 Abb. N. Cas. (N. Y. City Ct.) 324; v. Walker, 28 Vt. 442; Maxwell v. Bowdoin v. Coleman, 3 Abb. Pr. (N. Day, 45 Ind. 509. Y. Super. Ct.) 431; Victor v. Bauer 2. Lounsbury v. Purdy, 18 N. Y. (Supreme Ct.), n N. Y. St. Rep. 531; 515; Thomas v. Nelson, 69 N. Y. 118; Hoopers. Beecher (Supreme Ct.), 7 N. Bedford v. Terhune, 30 N. Y. 453; Y. St. Rep. 405; Rosebrooks v. Dins- Egert v. Wicker, 10 How. Pr. (N. Y. more, 5 Abb. Pr. N. S. (N. Y. Ct. App.) Supreme Ct.) 193; City Bank v. Me- 59; Doyle v. Mulren, 7 Abb. Pr. N. S. Clellan, 21 Wis. 112; Buckland v. Wil- (N. Y. Super. Ct.) 258; Rose v. Bell, 38 son, 28 Wis. 581; Carter v. West(Ky., Barb. (N. Y.) 25; Smith v. Holland, 60 1892), 19 S. W. Rep. 592; Davis v. Barb. (N. Y.) 333; Coleman v. Plays- Chicago, etc., R. Co., 83 Iowa 744. ted, 36 Barb. (N. Y.) 26; Hamilton v. Statute of Limitations. A reply to a Gridley, 54 Barb. (N. Y.) 542; Bar- counterclaim which does not set up tholomew v. Lyon, 67 Barb. (N. Y.) 86; the statute of limitations cannot be Drexel v. Pease (Supreme Ct.), 13 N. amended after judgment to conform Y. Supp. 774; Argersihger v. Levor to proof that the counterclaim was (Supreme Ct.), 7 N. Y. Supp. 923; Tripp barred by the statute. Williams v. v. Pulver, 2 Hun (N. Y.) 511; demons Willis, 15 Abb. Pr. N. S. (N. Y. Su- v. Davis, 4 Hun (N. Y.) 200; Tisdale preme Ct.) n. v. Morgan, 7 Hun (N. Y.) 583; Parsons After Nonsuit. Hill v. Haskins, 8 v. Suydam, 3 E. D. Smith (N. Y.) 276; Pick. (Mass.) 83; Jackson v. Bailey, 5 Union India Rubber Co. v. Tomlinson, Cow. (N. Y.) 265. i E. D. Smith (N. Y.) 364; Foote v. 3. Steinman v. Strauss (Supreme Roberts, 7 Rob. (N. Y.) 17; Hall v. Ct.), 44 N. Y. St. Rep. 380; Weems v. Morrison, 3 Bosw. (N. Y.) 520; Riker Shaughnessy (Supreme Ct.), 24 N. Y. v. Curtis (C. PL), 30 N. Y. Supp. 940. Supp. 271; McGuiniss v. New York, 6 Massachusetts. Whitney v. Hough- Daly (N. Y.)4i6. ton, 127 Mass. 527; Arlington v. Lyons, 532 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. (3) Confined to Original Cause of Action. Under the device of conforming the pleadings to the facts proved a party cannot be permitted to introduce a new cause of action 1 or, in the 131 Mass. 328; Denham v. Bryant, 139 Mass, no; Batchelder v. Hutchinson (Mass. 1894), 37 N. E. Rep. 452. A'ansas. Excelsior Mfg. Co. v. Boyle, 46 Kan. 202; Tipton v. Warner, 47 Kan. 706; Wilcox, etc., Organ Co. v. Lasley, 40 Kan. 521. Indiana. Hamilton v. Winterrowd, 43 Ind. 393; Case v. Wandel, 16 Ind. 459, and Hobbs v. Cowden, 20 Ind. 310, cases where there was a variance be- tween the instrument sued on and the one admitted in evidence ; Torr v. Torr, 20 Ind. 118; Carpenter v. Sheldon, 22 Ind. 259; Hull v. Green, 26 Ind. 388; McKinlay v. Shank, 24 Ind. 258; Bu- chanan v. State, 106 Ind. 251; Cleve- land v. Roberts, 14 Ind. 511; Lucas v. Smith, 42 Ind. 103; Krewson v. Cloud, 45 Ind. 273; Bristol Hydraulic Co. v. Borer, 67 Ind. 236; Davis v. Doherty, 69 Ind. n. Nebraska. Homan v. Steele, 18 Neb. 632. North Carolina. Gibbs v. Fuller, 66 N. Car. 116. Arkansas. Railway Co. v. Triplett, 54 Ark. 289; Sorrels v. Self, 43 Ark. 451 ; St. Louis, etc., R. Co.z/. Harper, 44 Ark. 524; Hanks v. Harris, 29 Ark. 323. Minnesota. Almich v. Downey, 45 Minn. 460. New Jersey. Finegan v. Moore, 46 N. J. L. 602; Ware v. Millville F. Ins. Co., 45 N. J. L. 177; Westervelt v. Demarest, 46 N. J. L. 40; McAndrews v. Tippet, 39 N. J. L. 105; American L. Ins. Co. v. Day, 39 N. J. L. 89; Willis v. Fernald, 33 N. J. L. 206. Pennsylvania. Downing v. Lind- say, 2 Pa. St. 382. See also infra, III, n,/, (i). Increasing Amount Claimed. Ke-tuc- e-mun-guah v. McClure, 122 Ind. 541, where the amount claimed in the prayer of the relief was considered as increased to correspond with the amount found due. Compare, on this point. May v. State Bank, 9 Ind. 233. Variance in Dates of Instrument. And a variance between the date of maturity of a promissory note as al- leged in the complaint and the date in a copy filed therewith may be regarded as cured by amendment. Carver v. Carver, 53 Ind. 241. New Defense. An amendment of the answer cannot be allowed by setting up a different defense. Hondorf v. Atwater (Supreme Ct.), 27 N. Y. Supp. 447- Laches of Applicant. Nor will an amendment be allowed where the de- fect was pointed out to the party upon the trial and he neglected to apply for leave to amend. Schmidt v. Gunther, 5 Daly (N. Y.)452- Issues not Litigated. It will not be allowed unless the issues sought to be introduced were fully litigated on the trial. Cumber v. Schoenfeld, 16 Daly (N. Y.)454- As to how the appellate court may infer whether the issues were or were not fairly litigated, see Riker v. Cur- tis (C. PL), 30 N. Y. Supp. 940. In Support of the Judgment. The amendment is allowed in order to sus- tain and not to reverse the judgment. Gasper v. Adams, 24 Barb. (N. Y.) 287; Starr Steamship Co. v. Mitchell, i Abb. Pr. N. S. (N. Y. C. PI.) 390. 1. Storrs v. Flint, 46 N. Y. Super. Ct. 498; Freeman v. Grant (Supreme Ct.), 30 N. Y. St. Rep. 143; Peters v. Chamberlain (Supreme Ct.), 36 N. Y. St. Rep. 100; Egert v. Wicker, 10 How. Pr. (N. Y. Supreme Ct.)-iQ3; South- wick v. First Nat. Bank, 84 N. Y. 420; Buffalo, etc., Ferry Co. v. Allen, 12 Civ. Pro. Rep. (N. Y. Supreme Ct.) 64; Freeman v. Grant, 132 N. Y. 22; Phillips v. Melville, 10 Hun (N.Y.) 211 ; Walter v. Bennett, 16 N. Y. 251; Union Bank v. Mott, n Abb. Pr. (N. Y. Su- preme Ct.) 42; Whittaker v. Merrill, 30 Barb. (N. Y.) 389; Nosser v. Cor- win, 36 How. Pr. (N. Y. C. PI.) 540; Bradley v. Shafer (Supreme Ct.), 19 N. Y. Supp. '640, 20 N. Y. Supp. 312; Hill v. London Assur. Corp. (City Ct.), 12 N. Y. Supp. 86; Joslyn v. Joslyn, 9 Hun (N. Y.) 388; Saltus v. Genin, 3* Bosw. (N. Y.) 250; Grant v. Burgwyn, 88 N. Car. 95; Carpenter v. Huffsteller, 87 N. Car. 273; Stowell v. Eldred, 39 Wis. 614; Newton v. Allis, 12 Wis. 378; Geary v. Bennett, 65 Wis. 554; Allen v. Brooks (Wis., 1894). 60 N. W. Rep. 253; Butcher v. Death, 15 Mo. 271; Levy v. Chittenden, 120 Ind. 37; Duns- ford v. Brown, 19 S. Car. 560. See also Joy v. Walker, 28 Vt. 442. Complaint Stating no Cause of Ac- tion. Where a complaint does not state a cause of action it cannot be 583 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. language of the Code, to " substantially change the claim or defense." * After Eeversal and Eemand. But after a judgment reversed, on the ground of a variance amounting to proof of a new cause of action, and the cause remanded, it seems that the trial court may then allow an amendment to meet the facts so proved. 3 (4) Only in FurtJierance of Justice. Amendments to conform to the proof should be liberally allowed, 3 but only when jus- amended so as to state a cause of ac- tion. Curtis v. Cutler, 7 Neb. 315; K v. H , 20 Wis. 239 ; - Fox River Valley R. Co. v. Shoyer, 7 Wis. 365. Compare Teetshorn v. Hull, 30 Wis. 162. See also Lounsbury v. Purdy, 18 N. Y. 515. In Alleman v. Bowen (Supreme Ct.), 15 N. Y. Supp. 318, it was held that where the trial court improperly denies a motion to dismiss a complaint on the ground that it does not state a cause of action, and the plaintiff does not ask for leave to amend, he will not be permitted to amend on an appeal taken by the defendant. Changing Suit in Equity to Action at Law. An amendment changing a suit in equity to an action at law cannot be allowed in order to conform to the proofs. Halsey v. Tradesmen's Nat. Bank, 56 N. Y. Super. Ct. 7. And a variance between a mere legal defense of payment and an equi- table counterclaim for specific per- formance is so vital that it cannot be cured by summary amendment on the trial. Stowell v. Eldred, 39 Wis. 614. Facts Occurring After Suit Brought. In an action for an accounting the court has no power to amend the com- plaint so as to give the plaintiff the benefit of facts occurring after his ac- tion was commenced, although it con- forms to the proof. Fickett v. Cohn (C. PL), 16 N. Y. St. Rep. 709. Com- pare Lowrey v. Reef, I Ind. App. 244. Changing Common Count to Covenant. An amendment may be made at the trial changing an action for use and occupation into one for covenant on a lease in order to conform to the proof. Bedford v. Terhune, 30 N. Y. 453. Gift Inter Vivos to Gift Causa Mortis. So where a complaint alleged an abso- lute gift and transfer the plaintiff was allowed to amend to conform to proof of a gift causa mortis. Walsh v. Bow- ery Sav. Bank (City Ct.), 26 N. Y. St. Rep. 95. Quantum Meruit. Upon the trial the plaintiff was allowed to amend so as to recover the actual value of services rendered where the contract upon which the action was brought was void by the statute of frauds. Tur- now z/. Hochstadter, 7 Hun (N. Y.) 80. Quantum Valebat. Where the com- plaint proceeds upon the basis of a contract price it may be amended by claiming damages by reason of the breach of a contract so as to conform to the proof. Evans, -v. Warner, 21 Hun(N. Y.)574- Increasing Ad Damnum. An amend- ment on the trial increasing the amount claimed so as to equal the amount proved does not make a new cause of action, and is properly al- lowed. Frankfurter!'. Home Ins. Co. (City Ct.), 36 N. Y. Supp. 81; Arrigo v. Catalano (Super. Ct.), 27 N. Y. Supp. 995, after verdict; Cargain v. Everett, 62 Hun (N. Y.) 620; Earth v. Walther, 4 Duer (N. Y.) 228. See also Cain v. Cody (Cal. 1892), 29 Pac. Rep. 778, and infra, III, 10, a. It is unnecessary to cite further au- thorities as to what constitutes a new cause of action, the subject having been treated in detail in a preceding part of this article. See supra, III, 6. 1. Corby v. Wright, 4 Mo. App. 443, where the proposed amendment would change the defense. ' But the issue may be changed. Cald- well v. Meshes, 53 Ark. 263. 2. Prindle v. Aldrich, 13 How. Pr. (N. Y. Supreme Ct.) 466. It must be remembered that in New York, contrary to the prevailing rule, amendments may be allowed before trial introducing a new cause of action. See supra, III, 6, a, note. And as to the power of the court to amend after remand to the same extent as if the case had not previously been tried, see infra, III, n, h. 3. Stephens v. Frampton, 29 Mo. 263; Guidery v. Green, 95 Cal. 630; Bedford v. Terhune, 30 N. Y. 453, 27 How. Pr. (N. Y.J422, i Daly (N.Y.) 371. Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. tice will be promoted thereby. 1 If the case was not tried upon the theory suggested by the amendment, it ought not to be al- lowed ; a nor should leave to amend the complaint be granted in order to enable the plaintiff to recover an utterly unconscionable demand. 3 Sufficiency of Proof. On appeal it will be presumed, unless the bill of exceptions shows the contrary, that the facts set up in the amendment were supported by the evidence. 4 (5) Where the Evidence was Objected to. A motion, after the close of the'evidence, to conform the pleadings to the proof can never be granted where the admission of the evidence was 1. Hubble v. Murphy, i Duv. (Ky.) 278; McSween v. McCown, 23 S. Car. 342. Surprise or Prejudice. The amend- ment should not be allowed when the opposite party will be surprised or misled. Dunsford v. Brown, 19 S. Car. 560. Setting Up Limitation. To allow a plaintiff to come in after judgment and plead the statute of limitations in bar of a counterclaim set up by the de- fendant in his answer, would not be in furtherance of justice. Clinton v. Eddy, 54 Barb. (N. Y.) 54- Denying Admitted Alfegations. It is within the discretion of the court to allow an answer to be amended after the hearing so as to conform to the proofs by denying an allegation of the complaint admitted in the original an- swer, where the plaintiff has/given evi- dence in support of such allegation both in chief and on rebuttal. Charlton v. Scoville, 68 Hun (N. Y.) 348, 22 N. Y. Supp. 883. But under ordinary cir- cumstances he cannot do so. Harrison v. Hastings, 28 Mo. 346. And a complaint cannot be amended so as to take away from it an allega- tion which has been admitted and re- lied upon by the defendant. Zimmer v. Brooklyn R. Co., 23 Abb. N. Cas. (N. Y. Supreme Ct.) 382. Making No Cause of Action. A mo- tion to conform the complaint to the proofs will not be allowed when its effect would be to make the complaint state no cause of action. Richards v. Fox, 52 N. Y. Super. Ct. 36. No Additional Defense. A motion to conform an answer to the proof may be denied where the proposed amend- ment contains no additional defense. Steinhauser v. Mason (C. PL), 19 N. Y. Supp. 228. Useless Amendment. After the sub- mission of an equitable action for final determination there was no prejudicial error in refusing an amendment of the petition to meet the proofs where, upon full consideration of all the evi- dence upon appeal, it is found that the relief prayed must in any event be denied. Horbach v. Marsh, 37 Neb. 22. An amendment of an answer to meet the proofs was properly refused where such amendment, taken in con- nection with the other averments in the answer, even if clearly proved, constituted no defense. Bush v. Bank of Commerce, 38 Neb. 403. 2. Marshall v. Golden Fleece Gold, etc., Min. Co., 16 Nev. 156. The prayer for relief will not be amended after verdict when the result would be to present issues that were not tried. Nevada County, etc., Canal Co. v. Kidd, 37 Cal. 282. See also Cumber v. Schoenfeld, i6Daly(N. Y.) 454- 3. Daley v. Russ, 86 Cal. 114, an amendment seeking to recover an ex- cessive brokerage for obtaining a loan. 4. Dougan v. Turner, 51 Minn. 330; Jones v. Gregg, 17 Ind. 84; Knox v. McFerran, 4 Colo. 348. Weight of Evidence. It was held, in Missouri Pac. Ry. Co. v. McCally, 41 Kan. 639, that, if there is some evi- dence to sustain the amendment, the ruling of the court will not be dis- turbed although it is apparently against the weight of the evidence produced on the trial. But in Hubble v. Murphy, i Duv. (Ky.) 278, the rul- ing of the trial court in allowipg an amendment to conform to the proof was reversed because the evidence was unsatisfactory. 55 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. promptly objected to when it was offered, upon the ground that it did not tend to support the allegations in the pleadings. 1 (6) Failure of Proof . The Codes provide that where the allega- tion to which the proof is directed is unproved, not in some par- ticular or particulars but in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof. In such a case the variance cannot be disregarded or amended to conform to the proof. 3 The provision is in effect another version of the rule which forbids the introduction of a new cause of action by amendment. 3 10. Amendment of the Ad Damnurn a. NOT A NEW CAUSE OF ACTION. Amendments of the ad damnum are never deemed to 1. Wheaton v. Voorhis, 53 How. Pr. (N. Y. Supreme Ct.) 319; Rutty v. Consolidated Fruit Jar Co., 52 Hun (N. Y.) 492; Smith v. Frost, 39 N. Y. Super. Ct. 389; Barnes v. Seligman, 55 Hun (N. Y.) 339; Alleman v. Bowen (Supreme Ct.), 39 N. Y. St. Rep. 822; Southwick v. Memphis First Nat. Bank, 84 N. Y. 420 ; Cunningham v. Hobart, 7 Gray (Mass.) 423; Seymour v. Fisher, i6Colo. 188; Robinson C. M. Co. v. Johnson, 13 Colo. 258; Cincin- nati, etc., R. Co. v. Bunnell,6i Ind.i83. Objection Reserved. Where the par- ties consented that all objections to the evidence might be reserved until the close of the trial, it was held that an objection made at that time was effectual. Johnson v. Mclntosh, 31 Barb. (N. Y.) 267. Proper Time for Amendment. If any amendment to the pleadings was necessary, it should be made prior to the introduction of the evidence if the evidence is objected to. Beard v. Tilghman, 66 Hun (N. Y.) 12, 20 N. Y. Supp. 736. 2. Egert v. Wicker, loHow. Pr. (N. Y. Supreme Ct.) 193; Whitcomb v. Hungerford, 42 Barb. (N. Y.) 177; Vrooman v. Jackson, 6 Hun (N. Y.) 326; Reed v. McConnell, 133 N. Y. 425; Texier v. Gonin, 5 Duer (N. Y.) 389; Moore v. McKibbin, 33 Barb. (N. Y.) 246; Patterson v. Patterson, i Rob. (N. Y.) 184; Cowenhoven v. Brooklyn, 38 Barb. (N. Y.) 9. Where a note is al- leged to be due " one day after date," a note admitted in evidence payable ' ' one after date " does not consti- tute a failure of proof. Brownlee v. Keniieipp, 41 Ind. 216. Radical Change in Plaintiff's Title. After issue joined in an action brought to recover the possession of personal property the plaintiff died. and thereafter the action was revived in the name of his widow as executrix. Upon the trial it appeared that the husband had no title to the property, but that the same was owned by the wife in her own right. It was held that the court had no power to amend the summons and complaint by striking out the word "executrix" and thus allow the plaintiff to recover by virtue of her own title to the prop- erty. Phillips v, Melville, 10 Hun(N. Y.) 211. False Imprisonment and Malicious Prosecution. An action for false im- prisonment cannot be changed on the trial by adding a count for malicious prosecution, the plaintiff having rested his case and failed to sustain his action in its original form. Waldheim v. Sichel, I Hilt. (N. Y,) 45. Recovery Against Defendant Not Charged. In a suit against two de- fendants demanding damages against only one, after a verdict " in favor of the plaintiff" for a certain sum the complaint cannot be amended ro as to demand damages against both defend- ants. Bradley v. Shafer (Supreme Ct.), 19 N. Y. Supp. 140. Objection on the Trial. In Doyle v. Mulren, 7 Abb. Pr. N. S. (N. Y. Super. Ct.) 258, it was held that an objection for failure of proof must be distinctly taken on the trial in order to be avail- able on appeal. 3. See supra, III, 6. Amending to Recover Nominal Dam- ages. In Bangor, etc., R. Co. v. Smith, 49 Me. 9, it was held that if plaintiffs fail to establish their right, as set forth in their declaration, they will not be allowed to amend by mak- ing a different description of their cause of action so that they may re- cover nominal damages. 586 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. constitute a new cause of action. Hence that frequent ground of objection will not hold at any stage of the case against amend- ments increasing or reducing the amount demanded. 1 b. BEFORE TRIAL By Increasing or Eeducing. It is proper to allow the plaintiff to amend his declaration or complaint before trial by increasing the ad damnum* And it is very much a matter of course to allow it to be reduced by amendment. 3 1. Harris v. Belden, 48 Vt. 478; Mcllhennyz/. Lee, 43 Tex. 205; Raleigh v. Cook, 60 Tex. 438 ; Burleigh v. Merrill, 49 N. H. 35, where the sum demanded was originally left blank; Reed v. New York, 97 N. Y. 620; John- son v. Brown, 57 Barb. (N. Y.) 118; Frankfurter v. Home Ins. Co. (City Ct.) 26 N. Y. Supp. 81; Arrigo v. Cata- lano (Super. Ct.), 27 N. Y. Supp. 995; Epperly v. Little, 6 Ind. 344; Webb v. Thompson, 23 Ind. 428; McOmber v. Balow, 40 Minn. 328; Chamberlain v. Mensing, 51 Fed. Rep. 511. See also Townsend Nat. Bank v. Jones, 151 Mass. 454. 2. Eaton v. Case, 17 R. I. 429; May v. State Bank, 9 Ind. 233; Gaff v. Hutchinson, 38 Ind. 341; Webb v. Thompson, 23 Ind. 428; Reed v. New York, 97 N. Y. 620; Brady v. Cassidy (C. PI.), 37 N. Y. St. Rep. 591; Mer- chant -v. New York L. Ins. Co., 2 Sandf. (N. Y.) 669; Gregg v. Gier, 4 McLean (U. S.) 208; Bogart -v. Mc- Donald, 2 Johns. Cas. (N. Y.) 219, with leave to the defendant to plead de no-vo; Topeka v. Sherwood, 39 Kan. 690, where the court refused to allow defendant time to file an amended an- swer; Graves v. New York, etc., R. Co., 160 Mass. 402; Capron v. Thomp- son, 3 Met. (Mass.) 59; Danielson v. Andrews, i Pick. (Mass.) 156, where the ad damnum was increased so as to give the right to appeal; Merrill v. Curtis, 57 Me. 152, a strong case; Me Lellan v. Crofton, 6 Me. 307; Brown v. Cribbs, 24 Ark. 248; McDonald v. Chicago, etc., R. Co., 26 Iowa 124; Geren v. Wright, 8 Smed. & M. (Miss.) 360. See infra, V, 2. After Demurrer for Want of Jurisdiction. In McDannell v. Cherry, 64 Tex. 177, it was held that a mistake in plac- ing the value of- the claim sued on be- low the jurisdiction of the court may be cured by amendment after demur- rer for want of jurisdiction, unless the value stated in the amended peti- tion be fictitious. To Cover Punitive Damages. It is not the practice to allow an amendment increasing the ad dammini where it is sought to recover vindictive damages. McGuckin v. Sister, 2 Edm. Sel. Cas. (N. Y.) 466. Notice of Amendment. An amended petition claiming a larger amount than is demanded in the original is material and should be served upon the defendant and regularly put at issue;- and when this is not done it will be presumed that the plaintiff has waived or abandoned it. Clark v. Holbrook, 14 La. Ann. 581. That defendant is entitled to notice of an amendment increasing the ad damnum, see also Hittson v. Gentry, 2 Tex. Civ. App. 670; Meyer v. North River Construction Co., 53 N. Y. Super. Ct. 387. 3. Carlyon v. Lennan, 4 Nev. 156; Whitcomb v. Straw, 60 N. H. 117; Pierce v. Strickland, 2 Story (U. S.) 292; Harvey v. Ferguson, 10 Ind. 393, and Brown v. Lewis, 10 Ind. 232, where the amount originally claimed was bevond the jurisdiction of the court. The situation was the same in Epperly v. Little, 6 Ind. 344, and the amendment was allowed after motion to dismiss for want of jurisdiction. Converse v. Damariscotta Bank, 15 Me. 431 ; Hart v. Waitt, 3 Allen (Mass.) 532; Whitney v. Sears, 16 Vt. 587. In a state court the ad damnum may be reduced in order to oust the juris- diction of the federal courts. Spiers v. Halsted, 74 N. Car. 620. Plaintiff's Purpose Immaterial. Upon the case being called for trial, it is error to refuse to allow a plaintiff to strike out a claim for damages with- out regard to the purpose which may influence him. Grass Valley Quartz Min. Co. v. Stackhouse, 6 Cal. 4I3- Eeducing Claim in Writ of Entry. The court may permit a demandant in a writ of entry or a writ of right to amend his declaration by diminishing the extent of his claim even after a verdict is returned into court and be- 587 Of Pleadings, etc., at AMENDMENTS. Common Law. under Codes, etc. Filling a Blank. The declaration may be amended by inserting the amount of the plaintiff's claim when the sum was left blank in all cases where the court has jurisdiction of the case. 1 After Plea in Abatement. The ad damnum in the declaration may be amended to conform to the sum laid in the writ even after plea in abatement for the defect. 2 c. ON THE TRIAL. The court may properly allow an amend- ment upon the trial increasing the ad damnum. 3 To Conform to Proof. The ad damnum may be increased by amend- ment so as to conform to the proof. 4 fore it is affirmed. Plummer v. Walker, 24 Me. 14. 1. Burleigh v. Merrill, 49 N. H. 35; Flanders v. Atkinson, 18 N. H. 167; Boddie v. Ely, 3 Stew. (Ala.) 182; Eaton v. Case, 17 R. I. 429. See also Merrill v. Curtis, 57 Me. 152; Stephens v. White, 2 Wash. (Va,) 203. In Eaton v. Case, 17 R. I. 429, the court said: " Plaintiff's contention is that the absence of the ad damnum was fatal, citing Hoit v. Molony, 2 N. H. 322; Deveau v. Skidmore, 47 Conn. 19. In both of these cases the defect was in the writ and not in the declaration.' It was held that the process did not set forth a demand nor ask for judg- ment for any sum against the defend- ant, and hence did not set forth a cause of action within the jurisdiction of the court to which the process was re- turnable, such jurisdiction being lim- ited by statutory provisions. The ground, of those decisions was that, as jurisdiction must appear in the pro- cess, there was nothing in court upon which to grant an amendment, and hence it must be dismissed. In the later case of Taylor v. Jones, 42 N. H. 25, it was held that the ad damnum may-be amended after verdict when it is apparent from the declaration that it was left blank, or too small a sum in- serted through mistake orinadvertence only. * * * McLellan v. Crofton, 6 Me. 307, went further by holding that the ad damnum clause in the writ which had been left blank might be amended after verdict by inserting a sufficient sum to cover the verdict. See also Clark v. Herring, 5 Binn. (Pa.) 33. In the present case the amendment was granted before the trial, and so the defendant had full opportunity to contest the amount claimed. We think the granting of the amendment was proper." See also Wright v. Potomska Mills Corp., 138 Mass. 328; Hook v. Turnbull, 6 Call. (Va.) 85. 2. Morton v. Smith, 4 T. B. Mon. (Ky.) 3 i 3 . 3. Johnson v. Brown, 57 Barb. (N. Y.) 118; Miaghan v. Hartford F. Ins. Co., 24 Hun (N. Y.) 58; Chamberlain v. Mensing (S. Car.), 51 Fed. Rep. 511; Austin v. Northern Pac. R. Co., 34 Minn. 473. In Pennsylvania, under the act of 1806, the court had power to allow the ad damnum to be increased on the trial. Clark v. Herring, 5 Binn. (Pa.) 33; Miles v. O'Hara, i S. & R. (Pa.) 32, before the jury was sworn; Tassey v. Church, 4 W. & S. (Pa.) 141. When Not Allowed. An amendment at the trial which increases the amount claimed to an amount sufficient to en- title the defendant to a removal of the case, if it had been made at a prior stage, cannot properly be allowed. Balch v. Wurzburner (C. PL), 29 N. Y. Supp. 62. During the Argument. An amend- ment curing a clerical error in the ad damnum clause may be allowed du- ring the argument to the jury and without terms. Borden v. Clark, 26 Mich. 410. But in Brewer v. Jacobs, 22 Fed. Rep. 217, it was held reversible error to allow an amendment during the ar- gument so as to cure a defect in the averments relating to damage sus- tained without at least reopening the case to give the defendant an op- portunity to introduce further proof. In Currie v. Natchez, etc., R. Co., 61 Miss. 725, an amendment increas- ing the ad damnum during the argu- ment was held not prejudicial to the defendant where the jury rendered a verdict for a sum less than that de- clared for originally. 4. Earth v. Walther, 4 Duer (N. Y.) 228; Cargain v. Everett, 62 Hun (N. 588 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. d. AFTER VERDICT OR REFEREE'S REPORT. Where a verdict is for a sum larger than the ad damnum, the difficulty may always be remedied by entering a remittitur ;* and the ad- damnum may be amended after verdict or report of a referee when it is appar- ent that it was left blank, or that too small a sum was inserted through mistake or inadvertence. 3 Upon Relinquishing the Verdict. In all actions for the recovery of dam- ages, whether sounding in tort or on contract, the court has no right to amend the declaration or complaint after verdict by in- creasing the amount of damages for which judgment is demanded without setting aside the verdict, requiring the plaintiff to pay the costs of the trial already had, and granting a new trial to en- able the defendant to contest the enlarged demand. 3 This was the old rule, 4 and is adhered to in the practice under the Codes. 5 After Merits Fully Litigated. If there has been a full and fair trial on the merits, an amendment increasing the ad damnum may be allowed without granting a new trial. 6 Y.) 620; Davis v. Smith, 14 How. Pr. (N. Y. Supreme Ct.) 187; Arrigo v. Catalano (Super. Ct.), 27 N. Y. Supp. 995; Frankfurter v. Home Ins. Co. (City Ct.) 26 N. Y. Supp. Si; Cain v. Cody (Cal., 1892), 29 Pac. Rep. 778. 1. See Taylor v. Jones, 42 N. H. 25; Lambert v. Blackman, i Blackf. (Ind.) 59; Kenyon v. Woodward, 16 Mich. 326; Williamson v. Canaday, 3 Ired. (N. Car.) 349, and also post, REMITTITUR. 2. Taylor v. Jones, 42 N. H. 25; Trego v. Lewis, 58 Pa. St. 463; Harris v. Belden, 48 Vt. 478 ; Frankfurter v. Home Ins. Co. (City Ct.), 26 N. Y. Supp. 81; Arrigo v. Catalano (Super. Ct.), 27 N. Y. Supp. 995; Davis v. Smith, 14 How. Pr. (N. Y. Supreme Ct.) 187; Cargain v. Everett, 62 Hun (N. Y.) 620, 16 N. Y. Supp. 668; Earth v. Walther, 4 Duer (N. Y.) 228. See also Tomlinson v. Earnshaw, 112 111. 311. Cox v. Burlington, etc., R. Co., 76 Iowa 478, holds that the amendment ought not to be allowed. Amendment Exceeding Verdict. It is not error to allow an amendment in- creasing the ad damnum to an amount exceeding the verdict upon the usual terms of paying costs and consenting to a new trial, where the defendant does not object to its allowance. Elt- ing z/.Campbell (District of New York), 5 Blatchf. (U. S.) 183. 3. Elting v. Campbell (District of New York), 5 Blatchf. (U. S.) 183; Bowman v. Earle, 3 Duer (N. Y.) 691; Dox v. Dey, 3 Wend. (N. Y.) 356; Curtiss v. Lawrence, 17 Johns. (N. Y.) in; Fish v. Dodge, 4 Den. (N. Y.) 311; Girard v. Stiles, 4 Yeates (Pa.) i; Pierce v. Northey, 14 Wis. 9; Coulter v. American, etc., Express Co., 5 Lans. (N. Y.) 67, where the allowance of an amendment without such terms was held erroneous and reviewable on ap- peal; Taylor v. Jones, 42 N. H. 25; Kenyon v. Woodward, 16 Mich. 326. See Stephens v. Sweeney, 2 Gilm. (7 HI.) 375- 4. See the cases cited in the pre- ceding note. English Cases. The following are English cases relating to amendments of the ad damnum after verdict: Dowkes v. Pilfield, Cro. Jac. 297; Pil- ford's Case, 10 Coke, 115; Chewly v. Morris, 2"W. Bl. 1300; Tomlinson v. Blacksmith, 7 T. R. 128 ; Pearse v. Cameron, I M. & S. 675; Skutt v. Woodward, i H. Bl. 238; Wilder v. Hendy, 2 Str. 1151; Marshall!/. Riggs, 2 Str. 1162; Yslier v. Dansey, 4 M. & S. 94; Perseval v. Spencer, Yelv. 45; Green v. Rennet, I T. R. 782. 5. Corning v. Corning, 6 N. Y. 97; Bradley v. Shafer (Supreme Ct.), 19 N. Y. Supp. 640; Decker v. Parsons, ii Hun (N. Y.) 295, holding that the same rule applies to an action tried before a judge without a jury by con- sent; Pharis v. Gere, 31 Hun (N. Y.) 443- 6. Earth v. Walther, 4 Duer (N. Y.) 228, an amendment to conform to the proofs after report of a referee; Car- gain v. Everett, 62 Hun (N. Y.) 620; Davis v. Smith, 14 How. Pr. (N. Y. Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. e. AFTER JUDGMENT. Where a judgment is rendered upon a verdict for an amount exceeding the ad dammim in the complaint or declaration, it is erroneous and cannot be validated by amend- ment 1 without express authority. 3 11. At What Stage of Proceedings a. BEFORE TRIAL (i) In Gen- eral. It is a well-settled rule that it is almost a matter of course to permit parties to amend their pleadings before trial when the amendment will not delay the trial nor work any special hardship to the adverse party. 3 The court may allow an amendment in- creasing the ad damnum,^ and the plaintiff should always be allowed to strike out a claim for damages regardless of the pur- pose which may influence him. 5 In some jurisdictions an amend- ment may be allowed which introduces a new cause of action or a new defense. 6 After Change of Venue. Amendments may be allowed by the court to which a cause is removed by a change of venue. 7 Supreme Ct.) 187; Arrigo v. Catalano (Super. Ct.), 27 N. Y. Supp. 995 ; Frank- furter v. Home Ins. Co. (City Ct.), 26 N. Y. Supp. 81. See also Cicotte v. Wayne County, 59 Mich. 509; dictum in Taylor v. Jones, 42 N. H. 25. 1. Kenyon v. Woodward, 16 Mich. 326; McLellan v. Crofton, 6 Me. 307, holding that it is not a circumstantial error within the Maine statute of jeofails; May v. State Bank, 9 Ind. 233, to the same point. See, however, Hook v. Turnbull, 6 Call (Va.) 85, where it was held that if the damages are omitted from the declaration, as the omission might be amended by the writ, the Court of Appeals will consider the declaration as in fact amended. And in Kennedy v. Woods, 3 Bibb (Ky.) 322, the court arrived at the same result where the verdict and judgment exceeded the ad damnum in the declaration, but were less than the sum laid in the writ. Pending Appeal. A plaintiff cannot amend his petition so as to increase his claim for damages after appeal and while the case is pending in the appel- late tribunal. Johnson v. Chaplin, 28 Iowa 570. On Appeals to Intermediate Appellate Courts. As to amendments increasing the ad damnum upon appeals from justice courts to county, circuit, or district courts, see McOmber v. Balow, 40 Minn. 388; Cross v. Eaton, 48 Mich. 184; Evers v. / Sager, 28 Mich. 47; Bickett v. Garner, 21 Ohio St. 659. 2. By the acts of 1790 and 1824, the Supreme Court of North Carolina had authority to make such an amend- ment. Grist v. Hodges, 3 Dev. (N. Car.) 203; State v. Broughton, 7 Ired. (N. Car.) 92. See Williamson v. Cana- day, 3 Ired. (N. Car.) 349. 3. Gilchrist v. Gilchrist, 44 How. Pr. (N.' Y. Supreme Ct.) 317, where the defendant was allowed to amend his answer by setting up the statute of limitations. Benson v. McNamee, (Supreme Ct.) 12 N. Y. St. Rep. 503, holding it reversible error to dismiss the complaint without leave to amend; Tannebaum v. Marsellus (City Ct.), 52 N. Y. St. Rep. 426, holding that a counterclaim is not an unconscionable defense; Denairz/. Brooklyn (City Ct.), 5 N. Y. Supp. 835; Balch v. Smith, 4 Wash. St. 504; Young v. Gay, 41 La. Ann. 758; Picket! v. Haynes, 28 La. Ann. 844; McMillan v. Dana, 18 Cal. 339; Zimmerman v. Amaker, 10 S. Car. ,98; Dyer v. Brackett, 61 Me. 587; Mc- Fadden v. Stark, 58 Ark. 7; Greer v. Louisville, etc., R. Co. (Ky., 1893), 21 S. W. Rep. 649; Pangborn v. Conti- nental Co., 67 Mich. 683. See also Thomas v. Com., 8 B. Mon. (Ky.) 371. The declaration maybe amended so as to change the venue. Pain v. Par- ker, 13 Johns. (N. Y.) 329; Fish v. Lyon, i How. Pr. (N. Y.) 234. The declaration may be amended to conform to the writ. Fallmer v. Steele, i Cai. (N. Y.) 22. 4. See supra, III, 10, b. 5. Grass Valley Quartz Min. Co. v. Stackhouse, 6 Cal. 413. 6. See supra, III, 6, a, note. 7. Hughes v. McDivit, 102 Mo. 77. But the refusal to allow an amend- ment will not be reviewed except fora 59 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. After Plea in Abatement. If the matter of a proposed amendment to a complaint is proper, the pendency of a plea in abatement, the legal effect of which the amendment may obviate, is rather a reason for than an objection to its allowance. 1 Thus an amend- ment may be allowed after plea in abatement for a defect in bringing suit in the name of an infant without a next friend, 2 or because the declaration does not conform to the writ, 3 or for want of parties, 4 or for coverture of the plaintiff, 5 or for misnomer, 6 or misjoinder of defendants. 7 Statutes sometimes provide for amendment after the proceeding has been actually abated. 8 (2) After Demurrer The General Eule. By the ancient practice no amendment was permitted after demurrer without the consent of the adverse party, upon the principle that if a party chooses to rest his defense or his case upon a point of law, raised upon the record, he must stand or fall upon the point so raised. 9 clear abuse of discretion. Shelby issue on the plea. Heslep v. Peters, County v. Castetter, 7 Ind. App. 309. 1. Foster v. Napier, 73 Ala. 595. In Mohr v. Sherman, 25 Ark. 7, the court said: " This court, in the case of 4 HI. 45- 7. Beall v. Territory, t New Mex. 507. 8. In Connecticut, Gen. Stat., 1876, p. Anthony v. Beebe, 7 Ark. 447, dis- 420, 12, provides that if any plea tinctly ruled that the motion to amend in abatement of any process be ruled must be made in apt time, and if not in favor of the defendant, the plaintiff made before the defect is pointed out may amend the defect on paying the by a plea in abatement for that cause defendant his costs up to that time, it cannot be made afterwards so as to It was held that this statute, in con- defeat the plea; but this decision has nection with the act of 1875 providing in effect been overruled by the case of for adding new parties, authorized an McLarren z-.Thurmand.S Ark. 314, and amendment by citing in new defend- Anthony v. Humphries, n Ark. 664; ants after the writ had been abated, and directly by the case of Mitchell v. and where there was no cause of ac- Conley, 13 Ark. 419; and the question tion against the original defendant. as to the amendment is left to the dis- cretion of the court, as it was before the case of Anthony v. Beebe, 7 Ark. Hilton v. Osgood, 49 Conn. no. 9. i Tidd Pr. (4th Am. ed.) 709; Bramah v. Roberts, i Bing. N. Cas. See also Hetten v. Lane, 43 481, 27 E. C. L. 466. See also Wood Tex. 279. 2. The name of a next friend was inserted by amendment. Blood v. Harrington, 8 Pick. (Mass.) 552. 3. Morton v. Smith, 4 T. B. Mon. (Ky.) 313, where the variance was in v. Anderson, 25 Pa. St. 407. After Judgment on General Demurrer. After judgment against the plaintiff on general demurrer to his declaration he could not have leave to amend. Chalk v. McAlily, 10 Rich. (S. Car.) 92; the amount of damages claimed; Mohr Moore v. Burbage, 2 McMull. (S. Car.) v. Sherman, 25 Ark. 7; Gilpin v. Ebert, 2 Colo. 23. 168; Bagley v. Johnston, 4 Rich. (S. Car.) 22. See also McAlister v. Clark, 4. Powell v. Myers, i Barb. (N. Y.) 33 Conn. 253; Hart v. Bowie, 34 La. Ann. 323. Otherwise after joinder in demurrer but before judgment. Good- win v. Hannah, 5 Strobh. (S. Car.) 427. 5. Jacobs v. Cunningham, 32 Tex. 774, where the plaintiff was allowed to amend by averring her husband's in- 157; Mobley v. Mobley, 7 Rich. (S. sanity as a reason for not joining Car.) 431. him. 6. The misnomer of the defendant was pleaded in abatement, and the After a demurrer to a plea for a bad conclusion was sustained the defend- ant was denied leave to amend. Flem- plaintiff was allowed to amend after ing v. Howard, i Brev. (S. Car.) 465. demurrer to the plea and then to withdraw his demurrer and take Where a plea was filed by a wrong Christian name of the defendant, and 59* Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. The strictness of the rule was gradually relaxed, first by requir- ing that the amendment should be made only while the proceed- ings were in paper before the argument of the demurrer, 1 next before the opinion of the court had been pronounced, 2 and at length before the judgment had been rendered; 3 and in modern practice amendments may be made even after judgment upon demurrer whenever the substantial ends of justice require it. 4 the plaintiff demurred generally to it as the defendant's plea, it was held that the plaintiff had waived any ex- ception for that cause and that the de- fendant was entitled to amend the plea. Hutchinson v. Brock, II Mass. 119. After a general demurrer to a dec- laration has been sustained and af- firmed on appeal without condition or direction the declaration is not amend- able. Central R., etc., Co. v. Pater- son, 87 Ga. 646, overruling, pro tanto, King v. King, 45 Ga. 195. Under Maine Rev. Stat., c. 82, 23, when exceptions are taken to the over- ruling of a general demurrer the same must be passed upon by the law court before an amendment to the declara- tion can be allowed at nisi prius. Shorey v. Chandler (Me., 1888), 15 Atl. Rep. 24. After Judgment on Special Demurrer. After judgment sustaining a special demurrer an amendment was allowed on payment of costs although an amendment had once before been granted. Hallock v. Robinson, 2 Cai. (N. Y.) 233. See also Murphy v. Lawrence, 2 Ga. 257; Davis v. Evans, 2 Murph. (N. Car.) 202. 1. i Tidd Pr. (4th Am. ed.) 709. In Wood v. Wilmington Confer- ence Academy, 5 Houst. (Del.) 513; Randel v. Canal Co., I Harr. (Del.) 151; and Easton v. Jones, i Harr. (Del.) 433, n. a, leave to amend after argument on general demurrer was refused. In Walker v. Maxwell, i Mass. 104, defendant had leave to amend his plea, after argument of a demurrer, upon payment of the costs. After Joinder in Demurrer. In Lan- ning v. Shute, 5 N. J. L. 778, the plaintiff was allowed to amend his declaration after joinder in demurrer. In Perkins v. Burbank, 2 Mass. 81, the court would not allow an amend- ment or repleader after joinder in de- murrer when the amended or new plea did not go to the merits. See also Barker v. Glascow, Tapp. (Ohio) 230. /;/ Tennessee it has been held that where after demurrer to a plea a new plea is drawn out in proper form, con- taining a good defense, and the truth of it is verified by affidavit, it would be error not to permit such plea to be filed, provided the motion was made before the demurrer came on for argu- ment. Dockery v. Miller, 9 Humph. (Tenn.) 731. But that, on the other hand, if the amended pleading is not offered so that the court can see that it would, as amended, be a good defense, it is not error to refuse leave to file it. Rainey v. Sanders, 4 Humph. (Tenn.) 447-' 2. In Harkins v. Edwards, i Iowa 296, it was held reversible error to re- fuse leave to plaintiff to amend his petition after demurrer, but before any decision thereon. See also Bell v. Byerson, n Iowa 233. 3. In Hart v. Baltimore, etc., R. Co., 6 W. Va. 336, it was declared to be the usual course, when the opinion of the court is in favor of the defend- ant on a demurrer to the whole declaration, to allow the plaintiff to withdraw his joinder in demurrer and amend his declaration. See also Harp v. Bull, 3 How. Pr. (N. Y.) 45; Morris v. Gentry, 89 N. Car. 248. 4. Greer v. Covington (Ky., 1885*, 2 S. W. Rep. 323, and Terry v. Bright, 4 Md. 430, where the declaration was amended after demurrer sustained. See also Cayce v. Ragsdale, 17 Mo. 32; Davis v. Burns, i Mo. 265; Hale v. Lawrence, 22 N. J. L. 72, holding that after a demurrer to a plea was sustained the defendant might amend his plea or plead anew. Jones v. Ritter, 56 Ala. 270, holds that while he may properly be allowed to amend, he cannot claim the right to file an entirely new plea. Plaintiff was allowed to amerd in Bean v. Ayers, 69 Me. 122; McGie r. McCann, 69 Me. 79; Frye v. Atlantic, 592 Of Pleadings, etc. , at AMENDMENTS. Common Law, under Codes, etc. But a party cannot be compelled to amend after a demurrer to his pleading is sustained. 1 etc., R. Co., 47 Me. 523; Hewett v. Thomas, 37 Tex. 520; Hollisz'. Border, 10 Tex. 360; Teetshorn v. Hull, 30 Wis. 162; Johnsons. Finch, 93 N. Car. 205; Netherton v. Candler, 78 N. Car. 88; Wilbur v. Abbot, 6 Fed. Rep. 817; Lake Bigler Road Co. v. Bedford, 3 Nev. 399. See Maine Cent. Inst. v. Haskell, 71 Me. 487. Not allowed in Burbank v. Harris, 32 La. Ann. 395; Stephens v. Myers, 12 Pa. St. 302. In Lansing v. Birge, 3 111. 375, leave to amend was held to be discretionary, and a refusal not a subject of error. But in Chicago Empire F. Ins. Co. v. Real Estate Trust Co., I 111. App. 391, it was said to be now the legal right of the party. In Whitfield v. Wooldridge, 23 Miss. 183, a denial of leave to amend a dec- laration after demurrer sustained was held to be reversible error. After Demurrer for Misjoinder. After a demurrer to a declaration has been sustained on account of a misjoinder of counts the court may grant an amendment on terms. Wilkinson v. Moseley, 30 Ala. 562. On that point the English authorities were not en- tirely in harmony. See Jennings v. Newman, 4 T. R. 347. Nor the Amer- ican decisions. Cooper v. Bissell, 16 Johns. (N. Y.) 146; Pell v. Lovett, 19 Wend. (N. Y.) 546, 22 Wend. (N. Y.) 369; Governor v. Evans, i Ark. 349- After a demurrer sustained for a misjoinder of parties the plaintiff may amend. Butcher v. Carleton, n Iowa 47. Misjoinder of Defendants. A com- plaint may be amended after sustain- ing a demurrer for a misjoinder of defendants by striking out the name of one of them. Pool v. Devers, 30 Ala. 672. Defective Citizenship. After demur- rer sustained for want of an averment of citizenship of the parties, it is the common practice to allow the plaintiff to amend. Fisher v. Rutherford, I Bald. (U. S.) 188. Amending Plea Puis Darrein Continu- ance. Where a plea puts darrein con- tinuance is adjudged bad on demurrer, the court may allow a repleader on terms. Field v. Cappers, 81 Me. 36; Augusta v. Moulton, 75 Me. 551. Or the plea may be withdrawn after the plaintiff has demurred to it. Rixford v. Brown, 10 Pick. (Mass.) 30. Amending Plea of Usury. A plea set- ting up usury may be amended after it has been held bad on demurrer to the replication; but a plea setting up a new defense of usury would not be al- lowed. Utica Ins. Co. v. Scott, 6 Cow. (N. Y.)6o6. Amending Declaration in Eeal Action. In a real action, the declaration con- taining a description of the demanded premises adjudged insufficient upon demurrer may be amended by perfect- ing the description. Bird v. Decker, 64 Me. 550. After Verdict on Issues of Fact. Where judgment is given against the plaintiff on demurrer after verdict in his favor, leave to amend will be given on his relinquishing the verdict and paying all costs subsequent to the joining of the issue; but where the judgment is against the defendant after verdict for the' plaintiff, leave to amend is not granted to the defend- ant. Fidler v. Cooper, 19 Wend. (N. Y.) 285. Amendment of Plea in Abatement. After demurrer filed thereto, a plea in abatement cannot be amended. Brown v. Nourse, 55 Me." 230. Leave to Withdraw Demurrer. A party may sometimes have leave to withdraw his demurrer after it has been argued and to plead or reply de novo in order to let in a trial on the merits; but the granting or withhold- ing leave is altogether discretionary, i Tidd Pr. (4th Am. ed.) 710. See Blackmore v. Phill, 7 Yerg. (Tenn.) 452; Mandeville v. Wilson, 5 Cranch (U. S.) 15. Technical Defect in Replication. In Bowles -v. Elmore, 7 Gratt. (Va.) 385, a technical defect in a replication was amended after demurrer sustained. In Massachusetts the allowance of an amendment to the declaration after demurrer sustained is discretionary and may be denied. Barlow v. Nel- son, 157 Mass. 395 ; or allowed, Webber v. Davis, 5 Allen (Mass.) 393. 1. Riggs v. Parsons, 29 W. Va. 522. Failure to Amend. A party who fails to amend a defective pleading after demurrer sustained can have no relief in an appellate court. Pitts v. Ennis, i Encyc. PI. & Pr. 38- 593 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, eta Under Code Provisions. Many of the Codes contain express pro- visions touching the allowance of amendments or of permission to plead anew after the decision on demurrer. 1 I Tex. 604; Graham v. Vining, i Tex. 669. After Affirmance on Appeal. Where a declaration is adjudged bad on demur- rer and affirmed in the supreme court, the court below will not be directed to permit the joinder in demurrer to be withdrawn and the declaration amend- ed. Glenn v. Noble, i Blackf. (Ind.) 104. 1. New York. The New York Code of Pro., 497, provides that upon the de- cision of a demurrer either at a gen- eral or special term or in the Court of Appeals, the court may in its discretion allow the party in fault to plead anew or amend upon such terms as are just. Where it is evident that no amend- ment can make the complaint good, leave will be refused. Lowry v. In- man, 37 How. Pr. (N. Y. Super. Ct.) 286; Snow v. New York Fourth Nat. Bank, 7 Rob. (N. Y.)47g. On overruling a demurrer to a com- plaint as frivolous, leave to answer will not be given without an affidavit of merits. Appleby v. Elkins, 2 Sandf. (N. Y.) 673. As to the granting of leave to an- swer by the Court of Appeals, see Whiting v. New York, 37 N. Y. 600; Fulton F. Ins. Co. v. Baldwin, 37 N. Y. 648. On affirming a judgment sustaining a demurrer to the complaint the Court of Appeals granted leave to amend where it appeared that otherwise the claim would be barred by the statute of limitations. Thatcher v. Candee, 3 Keyes (N. Y.) 157. Upon leave to amend after demurrer to part of an answer, the defendant can amend only the portion to which the demurrer referred. Fielden v. Carelli, 26 How. Pr. (N. Y. Supreme Ct.) 173. See Spencer v. Tooker, 21 How. Pr. (N. Y. Supreme Ct.) 333; Decker v. Kitchen, 21 Hun (N. Y.) 332. If, after a demurrer for defect of parties, the plaintiff amends by adding the necessary parties but does not amend his summons, the amended complaint may be struck out on mo- tion. Follower v. Laughlin, 12 Abb. Pr. (N. Y. Supreme Ct.) 105. California. California Code Civ. Pro. 472, provides that when a de- murrer to the complaint is overruled and there is no answer filed, the court may upon such terms as may be just allow an answer to be filed. The same section allows an amendment of a pleading of course and without costs after demurrer and before the trial of the issue of law thereon. It is error to refuse plaintiff leave to amend before a decision on defend- ant's demurrer. Lord v. Hopkins, 30 Cal. 76. The allowance of an amendment to the complaint after sustaining a de- murrer thereto is discretionary. Buck- ley v. Howe, 86 Cal. 596. But leave will usually be granted unless the complaint is so defective as to be be- yond the reach of amendment. Lord v. Hopkins, 30 Cal. 76; Gallagher v. Delaney, 10 Cal. 410. But the plain- tiff must move for leave. Smith v. Yreka Water Co., 14 Cal. 201. See also Borland v. Thornton, 12 Cal. 440. Whenever a demurrer to a complaint is sustained, on the ground that it does not state a cause of action, with- out leave to amend, the defendant is entitled to a final judgment in his favor. Mora v. Le Roy, 58 Cal. 8. And the court may in its discretion direct judgment for the plaintiff on overruling defendant's demurrer where no answer is on file. Scale v. McLaughlin, 28 Cal. 672; Barron v. Deleval, 58 Cal. 95. After judgment sustaining a de- murrer to an answer it is discretionary with the court to grant or refuse leave to amend. Gillan v. Hutchinson, 16 Cal. 154. Virginia. Under the Virginia Code of 1887, 3384, providing for amend- ments at the trial to cure a variance, it is proper to allow a declaration to which a demurrer has been sustained to be amended by striking out imma- terial words. Alexander, etc., R. Co. v. Herndon, 87 Va. 193. Nebraska. Under the Nebraska Code, where a demurrer to a petition is, sustained and the petition is sus- ceptible of amendment, it is the duty of the court to permit the amendment upon terms. Berrer v. Moorhead, 22 Neb. 687. 594 Of Pleadings, etc., at AMENDMENTS. Common ~aw, under Codes, etc. It is not error in an order sustaining a demurrer to omit to provide for leave to amend if the party whose pleading was de- murred to does not ask for such leave or for any order on the subject. 1 Amendment of Demurrer. The demurrer itself may be amended like any other pleading. 2 Upon sustaining a demurrer for nonjoinder of parties defendant, it is error to dismiss the action without giving the plaintiff an opportunity to bring in the absent defendant. Alex- ander v. Thacker, 30 Neb. 614. South Carolina. Under the old sys- tem plaintiff could not amend after a general demurrer to the complaint was sustained. Bagley v. Johnston, 4 Rich. (S. Car.) 22; Gaillard v. Tren- holm, 5 Rich. (S. Car.) 356 and notes. See Mobley v. Mobley, 7 Rich. (S. Car.) 431. But it is now a matter of discretion where the complaint is simply defective, and plaintiff may have leave to amend. Miller v. Stark, 29 S. Car. 325; Bischoff v. Blease, 20 S. Car. 460; Tompkins v. Augusta, etc., R. Co., 37 S. Car. 382; Staltings v. Barrett, 26 S. Car. 474. But he cannot introduce an entirely new cause of action. Trumbo v. Finley, 18 S. Car. 305. Missouri. Rev. Stat. Missouri, 3540, provides that where a pleading has been twice amended and adjudged insufficient in whole or in part, or the whole or some part thereof is stricken out on motion, the party filing it shall pay costs, and no further pleading shall be filed, but judgment shall be rendered. It is not sufficient that the pleading has been held bad upon objection to the introduction of evidence. Spurlock v. Missouri Pac. R. Co., 93 Mo. 530; Spurlock v. Missouri Pac. R. Co., 93 Mo. 13, distinguishing Beardslee v. Morgner, 73 Mo. 22. Montana. Where a demurrer to a complaint is overruled, it is error for the court, on subsequently concluding that the ruling on the demurrer was wrong, to exclude evidence in sup- port of the complaint unless the plain- tiff is first given the opportunity to amend. Creek v. McManus (Mont., 1893), 32 Pac. Rep. 675. Alabama. The statute expressly al- lows an amendment after demurrer sustained. Stewart v. Hargrove, 23 Ala. 429. See Brock v. South, etc., R. Co., 65 Ala. 79. Utah. When a demurrer to a com- plaint is sustained and a general privilege is given to amend, new par- ties cannot be substituted by way of amendment; they must be brought in by an order of the court amending the complaint in this respect. Salt Lake County v. Golding, 2 Utah 319. Colorado. Colorado Code, 74, pro- vides that after a demurrer decided the court may proceed to final judgment, " unless the unsuccessful party shall plead over or amend upon such terms as shall be just." A motion to dismiss for a demurra- ble jurisdictional defect is equivalent to a demurrer, and the plaintiff may be allowed to amend on the trial. Southwestern Land Co. v. Hickory Jackson Ditch Co., 18 Colo. 489. In Wyoming, where a demurrer is sustained or overruled it is entirely discretionary with the court whether either party shall be permitted to amend. Bonnifield v. Price, I Wyo- ming 223. Indiana. Indiana Code, 53 (2 G. & H. 81), which provides that "if the court sustain a demurrer, the plaintiff may amend by payment of the costs occasioned thereby," seems to be mandatory, and in the absence of sham or frivolous pleading the party must be allowed to amend. Ewing v. Patterson, 35 Ind. 326. Iowa. A party may be allowed to amend after decision on demurrer. Hintrager v. Richter, 85 Iowa 222. See Bell v. Byerson, II Iowa 233. But if the amendment is the same in substance as the original it will be struck off the files on motion. Waukon v. Strouse, 74 Iowa 547. 1. Smith v. Taylor, 82 Cal. 533; People v, Jackson, 25 Cal. 630; Buck- ley -v. Hine, 86 Cal. 596; Devoss v. Gray, 22 Ohio St. 159; Landers. Hall, 69 Wis. 326; Brock v. South, etc., R. Co., 65 Ala. 79. 2. Morrison v. Miller, 46 Iowa 84; Poweshiek County v. Cass County, 63 Iowa 244. But it is discretionary. Citizens' State Bank v. Adams, 91 Ind. 280. 595 Of Pleadings, etc. , at AMENDMENTS. Common Law, under Codes, etc. (3) After Issue Joined. The fact that the issues have been fully made up does not restrict the discretionary power of the court to allow amendments. 1 But leave to amend at that stage may be 1. Changing Issue. Whether a de- fendant shall be permitted to file an amended answer which changes the issues already made is a matter for the sound discretion of the court. Harney v. Corcoran, 60 Cal. 314 ; Stuart -v. Lander, 16 Cal. 372; Page v. Williams, 54 Cal. 562; Spanagel v. Reay, 47 Cal. 608; Finch v. Pindon, 19 Abb. N. Cas. (N. Y. Super. Ct.) 96. Subject to review for abuse. Tucker v. Liles, 3 La. 297. Withdrawal of Answer. A defendant may be allowed to withdraw his an- swer and file a general demurrer. Hedges v. Roach, 16 Neb. 673. Notice under General Issue. It is proper to allow an amendment of the notice attached to a plea of gen- eral issue. Beecher v. Circuit Judges, 70 Mich. 363; Pangborn v. Continental Ins. Co., 67 Mich. 683; Browne v. Moore, 32 Mich. 254. Notice Attached to Plea. In Frost v. Whitcomb, 2 How. Pr. (N. Y.) 194, a defendant was allowed to add to his pleas a notice of set-off and recoupment after issue joined and the case had been twice noticed for hearing. Perfecting Issue. After the court has ordered the trial of a case, but before the trial has begun, it is not error to allow an answer to be amended so as to put in issue an averment of the petition the denial of which had been omitted by an over- sight. Filbin v. Chesapeake, etc., R. Co., 91 Ky. 444. Additional Pleas. Leave should be given to a defendant who has pleaded the general issue to file additional pleas where they are necessary to a proper defense and he has been guilty of no culpable negligence in making his application. Misch v. McAlpine, 78111. 507; Hagerstown Steam Engine, etc., Co. v. Grizzard, 86 Ga. 574; Williams v. Cooper, i Hill (N. Y.) 637, where defendant in an ac- graphs to his answer before trial, where it was shown by affidavit to be necessary to his defense. Annexing Affidavit. In Loving v. Fairchild, i McLean (U. S.) 333, the defendant was permitted to amend his plea of non-assumpsit by annex- ing an affidavit denying execution of the instrument sued on as the statute required. Adding Pleas to General Issue. In Georgia, the general issue being filed at the first term, it may be amended by building on it any other plea at any stage of the case. Simon v. Myers, 68 Ga. 74; Howard v. Simpkins, 70 Ga. 322. Adding Statute of Limitations. Where the statute of limitations was pleaded, leave was given to add a count stating a promise by the ad- ministrator. Saltar v. Saltar, 6 N. J. L. 405. Averment of Request. In Butler v. King, 10 Cal. 342, an action for goods furnished, it was held reversible error not to allow the complaint to be amended before trial by alleging a request. After Overruling Exceptions. It is a proper exercise of discretion to permit the plaintiff to amend after overruling exceptions to his petition. The court has a right to doubt the cor- rectness of its decision. Hutchins v. Wade, 20 Tex. 7. Absolute Eight. In Pennsylvania, under the act of 1806 a plaintiff had an absolute right to amend before trial provided the adverse party was not taken by surprise. Golding v. Clayton, I Browne (Pa.) 175. Changing Plaintiffs. The plaintiff will not be allowed to amend his declaration substantially changing the plaintiffs after issue joined and the case has been noticed for trial. Coffing v. Tripp, i How. Pr. (N. Y.) 115. Laches of Applicant. In Brusie v. Peck (Supreme Ct.), 6 N. Y. St. Rep. tion for slander added a plea of jus- 709, leave to amend the complaint ten tification to his plea of the general issue. Additional Paragraph to Answer. In Koons v. Price, 40 Ind. 164, it was held reversible error not to allow the defendant to file additional para- years after joinder of issue was de- nied. See supra, III, 3, h. In Hurlbut v. Interior Conduit, etc., Co. (Super. Ct.), 28 N. Y. Supp. 1007, leave to amend an answer was denied on the ground of laches, which was 596 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. denied, and a party who assails the refusal of the trial court to open the issues in a case to admit the filing of additional plead- ings must affirmatively show an abuse of discretion. 1 (4) Before Announcing Ready for Trial. In Texas the statute provides that the pleadings may be amended by leave of the court before the parties announce ready for trial, and not there- after. 2 The statute is mandatory so far as to give the parties an absolute right to amend within the time prescribed, 3 and prohibi- tory in respect of amendments during the trial. 4 And a party may be allowed to withdraw his announcement of ready for trial for the purpose of moving to amend. 5 And an announcement also a ground of refusing amendments. So in Cavanaugh v. Britt, 90 Ky. 273; Fisher v. Greene, 95 111. 94; Louis- ville, etc., R. Co. -v. Hubbard, 116 Ind. 193; Dow v. Blake, 148 111. 76. Facts Occurring after Issue Joined. And amendments after issue, setting up facts which occurred after joinder of issue, will not be allowed. Morein v. Solomons, 7 Rich. (S. Car.) 97. 1. Louisville, etc., R. Co. v. Hubb- ard, 116 Ind. 193; Bever v. North, 107 Ind. 544; Citizens' State Bank v. Adams, 91 Ind. 280. Compare Dewey v. State, 91 Ind. 173; Darrell v. Hil- ligoss, etc., Gravel Road Co., 90 Ind. 264; Gaff v. Hutchinson, 38 Ind. 341; Commercial Nat. Bank v. Gibson, 37 Neb. 750. When the complaint is based upon a written lease and an assignment thereof, the former containing a for- feiture clause binding upon all parties, it is not error, when the case is about to be reached for trial, to refuse to permit an amended complaint to be filed by which the written instrument is sought to be set aside or reformed, so as to relieve plaintiff entirely from the effects of the forfeiture clause. Patrick v. Crowe, 15 Colo. 543. In an action on a note providing for attorney's fees, but not stating any amount, the refusal of leave to amend the complaint so as to claim such fees upon the eve of the trial is not an abuse of discretion, "although leave is usually granted." Lindley v. Sulli- van, 133 Ind. 588. 2. Texas Rev. Stat., art. 1192, with a proviso that no amendment shall pre- vent the suit from being tried at that term unless the court is satisfied that such amendment operates as a sur- prise to the opposite party. What Constitutes Announcement. Asking for judgment by default is in fact announcing ready for trial, and it is error to allow plaintiff to amend, after taking such a judgment, without first having it set aside. Portwood v. Wilburn, 33 Tex. 713. 3. Boren . Billington, 82 Tex. 137; Metzger v. Wendler, 35 Tex. 367. See also Whitehead v. Foley, 28 Tex. i; Contreras v. Haynes, 61 Tex. 103. Contra, Simpson v. Foster, 46 Tex. 618; Tulane v. McKee, 10 Tex. 335- 4. Love v. Mclntyre, 3 Tex. 9; Petty v. Lang, 81 Tex. 238; Spence v. On- stott, 3 Tex. 147. See Millers. Sturm, 36 Tex. 291; Collins v. Box, 40 Tex. 190; Trotti v. Hobby, 42 Tex. 349. A petition cannot be amended to conform to the proofs. Missouri Pac. R. Co. -v. Howe (Tex. App., 1891), 15 S. W. Rep. 198. Other cases intimate that this part of the statute is merely directory and does not deprive the court of the power to allow amendments at a subsequent stage, and even on the trial, if the ends of justice will be pro- moted thereby. Whitehead v. Foley, 28 Tex. i; Radam v. Capital Microbe Destroyer Co., 81 Tex. 122; Texar- kana, etc., R. Co. v. Goldberg (Tex., 1887), 5 S. W. Rep. 824. But the refusal to allow an amendment at that stage is not error. Burleson v. Hancock, 28 Tex. 81; Heflin v. Burns, 70 Tex. 347; Harris v. Spence, 70 Tex. 616; Davis v. Campbell, 35 Tex. 779, where defendant was denied leave to amend his plea in abatement after announc- ing ready for trial. Compare Phillips v. Patillo, 18 Tex. 518. 5. Whitehead -v. Foley, 28 Tex. i; Foster v. Smith, 66 Tex. 680. The discretion of the court in per- mitting defendant to withdraw his an- nouncement and file special exceptions to the petition will not be reviewed 597 Of Pleadings, etc., at AMENDMENTS, Common Law, under Codes, etc. made before issues of law have been disposed of is made subject to the right to amend thereafter. 1 (5) On the Eve of Trial. Where amendments are allowed on the eve of the trial and the adverse party does not ask for further time, it will be presumed that he was not prejudiced. 2 b. ON THE TRIAL (i) In General Formal Errors. Amend- ments to correct mere clerical errors or formal defects are allowed almost as of course. 3 To Obviate a Variance or Conform to Proof. Amendments to obviate an objection to the introduction of evidence, 4 or to conform the pleadings to the facts proved, may be allowed. 5 Making a New Cause of Action. But amendments upon the trial intro- unless for manifest abuse. Obert v. Landa, 59 Tex. 475. 1. De Witt v. Jones, 17 Tex. 620; Croft -v. Rains, 10 Tex. 520; Jennings v. Moss, 4 Tex. 452. After Exceptions Sustained. After ex- ceptions are sustained the right to amend extends only to the defect to be cured, although it is within the discretion of the court to allow an amendment of other defects. Glass- cock v. Hamilton, 62 Tex. 143; Ann Berta Lodge v. Leverton, 42 Tex. 18; Hays v. Houston, etc., R. Co., 46 Tex. 272. 2. Union Pac. R. Co. v. Broderick, 30 Neb. 739; Richardson v. Wallace, 39 S. Car. 216. On the other hand, it is not an abuse of discretion to refuse to allow additional pleas to be filed first before trial, where a long time has elapsed after the issues were made up, Fisher v. Greene, 95 111. 94; or where the case is afterwards tried as if all the matters set forth in the proposed amendment were pleaded, Shad- burne v. Daly, 76 Cal. 355. See also Howard v. McKowen, 2 Browne (Pa.) 150. In Louisiana, by rule of court all amendments must be filed " previous to the time when the case is set for trial." Duval v. Kellam, i Rob. (La.) 58; Laudry v. Garnet, i Rob. (La.) 362. An application comes too late on the date the cause is set for trial. Chal- mers v. Stow, 3 Martin N. S. (La.) 307. 3. Hitchcock v. Merrick, 15 Wis. 522; Stroebe v. Fehl, 22 Wis. 337; Pel- lage v. Pellage, 32 Wis. 136: Mona- ghan v. School Dist. No. I, 38 Wis. 100; Winn v. Peckham, 42 Wis. 493; Hall v. Rice, 64 Cal. 443; Burch v. Taylor, 32 Ala. 26; Hartford City Natural, etc., Gas Co. v. Love, 125 Ind. 275; Reed v. Cheney, in Ind. 387; Green v. Jackson, 15 Me. 136; Brown v. McHugh, 35 Mich. 50; Sutton v. Van Akin, 51 Mich. 463; Ludeman v. Hirth, 96 Mich. 17; Hulbert v. Brackett, 8 Wash. 438; Havana Bank v. Magee, 20 N- Y. 353; Hagins v. De Hart, 12 How. Pr. (N. Y. Supreme Ct.) 322; Smith v, Nash, 5 La. Ann. 575. In Chandos z>. Edwards, 86 Wis. 493, it was held reversible error to re- fuse leave to amend the complaint so as to correct a " mere slip of the pen." Technical Defect. Where the defend- ant in replevin was defeated on the trial for a technical defect in his avowry, he was allowed to amend on payment of costs. Wright v. Wil- liams, 5 Cow. (N. Y.) 501. Striking out Superfluous Party. After the evidence closed and argument concluded, the plaintiff was permitted to strike out the names of defendants against whom a judgment would have been a nullity. Trees v. Eakin, 9 Ind. 554. Reduction of Demand. A plaintiff should be allowed to reduce his claim on the trial, Dougherty v. Purdy, 18 111. 206; Towle v. Blake, 38 Me/528. See also Hall v. Briggs, 18 Pick. (Mass.) 503; but not so as to deprive the defendant of the benefit of credits. Dodge v. Tileston, 12 Pick. (Mass.) 328. The Tennessee Code, sec. 2869, per- mits a change " in the form of action" upon terms as to continuances, etc., and this was held to imply that it could be allowed only before trial. Smith v. Large, i Heisk. (Tenn.) 5. 4. See supra, III, 9, a. 5. See sufra, III, 9, b. 598 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. ducing an entirely new cause of action are usually held to exceed the power of the court. 1 Liberally Allowed. In some jurisdictions it is the declared policy of the court always to allow amendments of the pleadings on the trial upon just terms when they are found to be so defective that the real subject of dispute cannot otherwise be determined.* And the exercise of discretion by the trial court is rarely dis- turbed where the application to amend is granted. 3 1. See supra, III, 6, a. In New York "the only limitation upon the power of the court to amend at the trial is that a new cause of ac- tion shall not be substituted for the old one." Richmond v. Second Ave. R. Co. (Super. Ct.), 29 N. Y. Supp. 583. Changing Theory of Case. After all the evidence is in, the court may re- fuse to allow an amendment of the complaint which involves an entire change in the theory of the plaintiff's case. Lewark v. Carter, 117 Ind. 206. 2. Stringer v. Davis, 30 Cal. 318, where a denial of leave to amend was held reversible error; Walsh v. Mc- Keen, 75 Cal. 519; Link v. Jarvis (Cal., ^93)> 33 Pac. Rep. 206; Miller v. Metzger, 16 111. 390; Swift v. Mulkey, 14 Oregon 59. See also Wright v. Bacheller, 16 Kan. 259; Robinson v. Darden, 50 Ala. 71; Pride v. Worm- wood, 27 Iowa 257. In Tennessee, a refusal to allow new pleas to be filed on the trial will not be disturbed unless in an extraordinary case. Clark v. Thomas, 4 Heisk. (Tenn.) 419. So in Louisiana, Dabbs v. Hemken, 3 Rob. (La.) 123. 3. South Carolina. Suber v. Chand- ler, 28 S. Car. 382. Colorado. Cooper v. McKeen, n Colo. 41. California. Covvbrough v. Adams, 70 Cal. 374, where defendant was per- mitted to amend his answer at the close of the trial by setting up the pendency of another action; McPher- son v. Weston, 85 Cal. 90; Robinson v. Smith, 14 Cal. 254; Beronio v. Southern Pac. R. Co. 86 Cal. 415; Irwin v. McDowell (Cal., 1893), 34 Pac. Rep. 708; Riverside Land, etc., Co. v. Jensen, 73 Cal. 550; Gavitt v. Doub, 23 Cal. 79. Michigan. Lester v. Thompson, 91 Mich. 245; Mead v. Glidden, 79 Mich. 209. Iowa. Aultman v. Shelton (Iowa, 1894), 57 N. W. Rep. 857; Eslich v. Mason City, etc., R. Co., 75 Iowa 443; Hall v. Chicago, etc., R. Co. (Iowa, 1892), 51 N. W. Rep. 150. Kansas. Leavenworth First Nat. Bank v. Tappan, 6 Kan. 456. Wisconsin. Bonner v. Home Ins. Co., 13 Wis. 677; Kretser v. Gary, 52 Wis. 374. Massachusetts. Harrington v. Har- rington, 107 Mass. 329. Missouri. State v. Sandusky, 46 Mo. 377. Indiana. Burns v. Fox, 113 Ind. 205; Judd v. Small, 107 Ind. 398; Grand Rapids, etc., R. Co. v. Ellison (Ind., 1888), 18 N. E. Rep. 507; Martinsville v. Shirley, 84 Ind. 546; Wayne County Turnpike Co. v. Berry, 5 Ind. 286. Minnesota. Morrison v. Lovejoy, 6 Minn. 319; Osborne v. Williams, 37 Minn. 507; McEvoy v. Bock, 37 Minn. 402. Pennsylvania. Melvin v. Melvin, 130 Pa. St. 6; Hellings v. Wright; 14 Pa. St. 373. Nebraska. Ward v. Parlin, 30 Neb. 376; Brown v. Rogers, 20 Neb. 547; Singer Mfg. Co. v. Doggett, 16 Neb. 609. Oregon. Wild v. Oregon, etc., Short Line R. Co., 21 Oregon 159. Georgia. Vance v. Crawford, 4 Ga. 445- Mississippi. Mississippi Cent. R. Co. v. Whitehead, 41 Miss. 225. Maryland. Scarlett v. Academy of Music, 43 Md. 203. New Jersey. Joslin v. New Jersey Car Spring Co., 36 N. J. L. 141. Maine. Soule -v. Bruce, 67 Me. 584. In Miller v. Garling, 12 How. Pr. (N. Y. Supreme Ct.) 203, the com- plaint was amended at the trial so as to claim special damages. No Prejudice. The allowance of amendments, the evidence in support of which would be admissible under the original pleading, cannot be preju- dicial to the adverse party. Blewett v. Front St. Cable R. Co., 51 Fed. 599 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Where Plaintiffs Claim Would Be Barred. The fact that if driven to a new action the plaintiff's claim will be barred by the statute of limitations is a strong reason for allowing him to amend so as to enable him to maintain his suit. 1 in Case of Mistake. Where reasonable diligence has been shown, and a party for the first time discovers on the trial that the cause of action or defense has been misunderstood, and for that reason improperly alleged in his pleading, an amendment should be allowed when applied for without unnecessary delay. 2 Question First Raised on the Trial. It is the positive duty of the court to allow a defect in a declaration to be cured by amendment on the trial when the question was then raised for the first time and could have been determined at an earlier stage of the proceedings by special demurrer. 3 So a defendant should be permitted to amend his answer or plea where the plaintiff has failed to point out the defect until the trial. 4 Laches of Applicant. On the other hand, where a party has had Rep. 625; Maish v. Crangle, 80 Iowa 650. Presumption of Propriety. Where an amendment is allowed, the omission of the other party to ask for delay or a continuance has been noted as a circumstance rebutting a presumption of prejudice. Bunyan v. Loftus (Iowa, 1894), 57 N. W. Rep. 685; Powers v. Fox (City Ct.), n N. Y. St. Rep. 651; Lester v. Thompson, 91 Mich. 245; Walsh v. McKeen, 75 Cal. 519; Cheney z/. O'Brien, 69 Cal. 199; Klemm v. New York Cent., etc., R. Co. (Supreme Ct.), 28 N. Y. Supp. 861; Frankfurter v. Home Ins. Cc. (City Ct.), 26 N. Y. Supp. 81; Meyer v. State, 125 Ind. 335; Excelsior Mfg. Co. v. Boyle, 46 Kan. 202. See also Baldwin v. New York, etc., Nav. Co., 9 Daly (N. Y.) 314- 1. Shieffelin v. Whipple, 10 Wis. 81; Miller v. Watson, 6 Wend. (N. Y.) 506; Thornton v. Herring, 5 Houst. (Del.) 154- 2. Hauck v. Craighead, 4 Hun (N. Y.) 561; Marie v. Garrison, 13 Abb. N. Cas. (N. Y. Super. Ct.) 210; Jackson v. Sanders, 2 Edm. Sel. Cas. (N. Y.) 12; Bailey v. Kay, 50 Barb. (N. Y.) no; Cooper v. Wood, i Colo. App. 101. See also Robinson v. Hartridge, 13 Fla. 501; Vilas v. Mason, 25 Wis. 310; Northwestern Iron Co. v. JEtna Ins. Co.. 26 Wis. 78. Changing Parties. Misdescription of the parties may be corrected. Mc- Duffie v. Irvine, 91 Ga. 748. New plaintiffs may be added on the trial. Boyd v. Steamboat Falcon, i Handy (Ohio) 362; Polk v. Coffin, 9 Cal. 56. But the amendment may be denied on the ground of laches. Bur- rus v. Fisher, 27 Miss. 418. Some of the plaintiffs maybe struck out, Wilson v. King, 6 Yerg. (Tenn.) 493; Hinkle v. Davenport, 38 Iowa 355; and new ones added, Tayon v. Ladew, 33 Mo. 205. But the court may deny such an amendment. Gvvynn v. Globe Locomotive Works, 5 Allen (Mass.) 317. Construction of Stipulation. A stipu- lation that " no other or further or amended answer shall be allowed to be served and no delay shall ensue," was held not to limit the power of the court to grant an amendment on the trial. Hennequin v. Clews, 46 N. Y. Super. Ct. 330. 3. Fletcher v. Forler, 83 Mich. 52, an action for selling liquor to a person intoxicated, where the plaintiff had failed to allege that the saloonkeeper knew that the person was intoxicated, the refusal of leave to amend being held reversible error. Buck v. Barker (Super. Ct.), 5 N. Y. St. Rep. 826. See also Tooker v. Arnoux, 76 N. Y. 397- 4. Hirsh v. Shafer, 66 Miss. 439, where defendant was allowed to verify the denial in his answer so as to com- ply with the statute. Arrington v. Tupper, 10 Cal. 465; Lattimer v. Ryan, 20 Cal. 628, and Gaylord z>. Stebbins, 4 Kan. 42, cases practically identical with the foregoing. 600 'Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. his attention called to defects in his pleading and ample time to correct them before trial, leave to amend may be denied on the ground of laches. 1 Only in Furtherance of Justice. Ordinarily amendments will not be allowed so as to give one of the parties a purely technical advan- tage over the other.* Thus the court will not grant leave to the defendant to plead in abatement during the progress of the trial ; 3 nor will amendments be allowed where the court, in view of all the circumstances, is not satisfied that the ends of justice will be promoted thereby. 4 1. Johnson v. American Writing- Mach. Co. (Super. Ct.), 4 N. Y. Supp. 391; Eggleston v. Beach (Supreme Ct.), 33 N. Y. St. Rep. 835; Bowen v. Sweeney, 63 Hun (N. Y.) 224, 17 N. Y. Supp. 752; Heyler v. New York News Pub. Co. (Supreme Ct.), 24 N. Y. Supp. 499; Butler v. Farley (Supreme Ct.), 17 N. Y. St. Rep. 109; Sharpe v. Dill- man, 77 Ind. 281; Hancock v. Hub- bell, 71 Cal. 537; Page -v. Williams, 54 Cal. 562; Baughman v. Hale, 45 Kan. 453; Kelly v. Kershaw, 5 Utah 295; Minnock v. Fire, etc., Ins. Co., 90 Mich. 237; Phenix Ins. Co. v. Stocks, 149 111. 319. See also Owens- boro, etc., R. Co. v. Harrison (Ky., 1893), 22 S. W. Rep. 545; Stone v. Mattingly (Ky., 1892), 19 S. W. Rep. 402. Knowledge of Defense. Some cases hold that a defense known to the de- fendant when he filed his original an- swer ought not to be set up by amend- ment on the trial. Lewin v. Houston, 8 Tex. 94; Gotten v. Fidelity Casualty Co., 41 Fed. Rep. 506; Gwinn v. O'Dan- iel, 5 Tex. Civ. App. 112; Case v. Wat- son, 22 La. Ann. 350; Spyker v. Hart, 22 La. Ann. 534; Louisville Under- writers v. Pence (Ky. , 1892), 19 S. W. Rep. 10. See also Chlein v. Kabat, 72 Iowa 291; Thoman v. Chicago, etc., R. Co. (Iowa, 1894), 60 N. W. Rep. 612); Compare Farmers' Nat. Gold Bank v. Stover, 60 Cal. 387. 2. Hexter v. Schneider, 14 Oregon 184. 3. Hexter v. Schneider, 14 Oregon 184. In O'Toole v. Garvin, i Hun (N. Y.) 313, the defendant was not permitted to amend so as to set up a technical defense. Pleading Sunday Law. A refusal to allow an answer to be amended after the evidence was all in, by setting up that the contract was made on Sunday, was not an abuse of discretion. Chlein v. Kabat, 72 Iowa 291. Statute of Limitations. The court may well refuse to allow the defend- ant to amend on the trial by setting up the statute of limitations. Marx v. Hilsendegen, 46 Mich. 336; Gar- lington v. Copeland, 32 S. Car. 57; Seegers v. McCreery (S. Car. ,1894), 19 S. E. Rep. 696. And where the statute of limita- tions was pleaded in due time, the court refused to allow the plaintiff to amend on the trial by averring that he discovered the fraud which consti- tuted the ground of action within the statutory period. Hiatt v. Auld, n Kan. 176; Riggs v. Chapin (Supreme Ct.), 7 N. Y. Supp. 765. 4. Useless Amendments. It is not error to refuse an amendment to which a demurrer would be sustained, Beavers v. Hardie, 59 Ala. 570; or an amendment which is immaterial, Stein- hauser v. Spraul, 114 Mo. 551; or un- availing, Peck v. Rees, 7 Utah 467; Aultman v. Shelton (Iowa, 1894), 57 N. W. Rep. 857. See also Wilson v. Bailey, i Handy (Ohio) 177; Shaw v. Alexander, 32 Miss. 229; or irrelevant, Iverson v. Dubay, 39 Minn. 325; Liv- ingston v. Anderson, 30 Fla. 117. Amendment of Complaint Denied. The plaintiff may properly be refused per- mission to amend his complaint in re- plevin on the trial by reducing the alleged value of the property to sub- serve a questionable purpose, and without any averment of mistake. Schoenhofen Brewing Co. v. Arm- strong (Iowa, 1894), 57 N. W. Rep. 436. It is not an abuse of discretion to refuse to permit an amendment of the complaint after the trial which will raise new issues and probably require a new trial. Bradley v. Parker (Cal., 1893), 34 Pac. Rep. 234. 601 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, otc. (2) At What Stage of the Trial After Jury Sworn. A party may be allowed to amend his pleading after the jury are sworn. 1 Beswearing the Jury. But if the issues are changed thereby, the practice in some jurisdictions requires that the jury be resworn. 8 After plaintiff had closed his case he was denied leave to amend so as to enable him to take advantage of evi- dence offered by the defendant. Wool- man v. Zebley, I Houst. (Del.) 459. In Renfro v. Prior, 22 Mo. App. 403, it was held to be an abuse of dis- cretion to allow the plaintiff to amend a count in his complaint at the close of his case which had been virtually stricken out by excluding evidence in support of it. Amendments of Answer Denied. After plaintiff has closed his case the court may properly refuse to allow an amendment of the answer changing the issues and requiring a continu- ance to enable plaintiff to procure wit- nesses. Skagit R., etc., Co. v. Cole, 2 Wash. 57. Amendment of the answer tender- ing a new issue which the plaintiff is not prepared to meet may be refused. Ferguson v. Hannibal, etc., R. Co. 35 Mo. 452; Garton v. Cannada, 39 Mo. 357. See also Sevin v. Caillouet, 30 La. Ann. (Pt. I.) 528; Cohn v. Levy, 14 La. Ann. 355; Case v. Watson, 22 La. Ann. 351; Spyker v. Hart, 22 La. Ann. 534. After plaintiff has closed his case it is not error to refuse to allow the de- fendant to strike out an admission of an allegation in the complaint. Miner v. Baron (Supreme Ct.), 39 N. Y. St. Rep. 893; Rice v. Ege, 42 Fed. Rep. 658. And leave to withdraw an ad- mission in the answer arid assert a contrary fact may be denied. Iltis v. Chicago, etc., R. Co. 40 Minn. 273; or leave to withdraw a denial and plead payment, Garrisons. Goodale, 23 Ore- gon 307. In Durkee v. Felton, 54 Wis. 405, it was held no error to allow the defend- ant to amend by denying a material fact admitted in the original answer. In Glazer v. Lowrie, 8 S. & R. (Pa.) 498, after plaintiff had closed his evi- dence the court refused to allow the defendant to introduce a plea of set- off. In Lanphere v. Clark (Supreme Ct.), 29 N. Y. Supp. 107, refusal to allow defendant in a slander suit to amend an insufficient justification was held not an abuse of discretion. Striking out Admission in Complaint. And in Conwacey v. New York, 8 Daly (N. Y.) 306, the plaintiff was allowed to strike out an admission in the com- plaint. See also Hepp v. Huefner, 61 Wis. 148. But see Miller v. Moore, I E. D. Smith (N. Y.) 739. 1. Brazelton v. Turney, 7 Coldw. (Tenn.) 267; Garrett v. Dickerson, 19 Md. 418; Syme v. Jude, 3 Call. (Va.) 522; Tabb v. Gregory, 4 Call. (Va.) 225; Crassen v. Swoveland, 22 Ind. 427; Adams v. Main, 3 Ind. App. 232; Record v. Ketcham, 76 Ind. 482; Smith v. Rutherford, 2 S. & R. (Pa.) 358; Missouri River, etc., R. Co. v. Owen, 8 Kan. 409; Beronio v. Southern Pac. R. Co., 86 Cat 415; Coleman v. Drane, 116 Mo. 387. Refused in Wilmington Bank v. Cooper, i Harr. (Del.) 10; Dulany v. Norwood, 4 Har. & M. (Md.) 497: State v. Vandever, 3 Harr. (Del.) 29; State v. Magee, 2 Harr. (Del.) 46; Atkinson v. Cox, 54 Ark. 444; Bean v. Moore, 2 Chand. (Wis.) 392; Diehl v. McGlue, 2 Rawle (Pa.) 337; Shan- non v. Com., 8 S. & R. (Pa.)444; Smith v. Rutherford, 2 S. & R. (Pa.) 358; Keasby v. Donaldson, 2 Browne (Pa.) 103; Thackara v. Curren, 2 Browne (Pa.) 246 ; Gordon v. Kennedy, 2 Binn. (Pa.) 291; Ridgely v. Dobson, 3 W. & S. (Pa.), 118; McKown v. Mathes, 19 La. 542. Compare Austin v. Ingham, 4 Yeates (Pa.) 347. 2. Ostrander v. Clark, 8 Ind. 211; Kerstetter v. Raymond, 10 Ind. 199; Hoot v. Spade, 20 Ind. 326; Kersch- baugher v. Slusser, 12 Ind. 453; Rec- ord v. Ketcham, 76 Ind. 482; Brown v. Shearon, 17 Ind. 239, where the evidence was reheard. See also Will- iams v. Miller, 10 Iowa 344; Maffitt v. Rynd, 69 Pa. St. 380, where the jury were resworn after an amendment in the names of the parties. Otherwise where the amendment does not change the issue, Record v. Ketcham, 76 Ind. 482; Sandford Tool, etc., Co. v. Mullen, i Ind. App. 204; Knowles v, Rexroth, 67 Ind. 59; Rogers v. State, 99 Ind. 218; or where 602 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. During the Argument. It is not error to allow an amendment otherwise proper while the case is being argued to the jury. 1 After Jury instructed. The court may allow an amendment after the jury have been instructed. 2 After Submission to Jury. It is generally too late to allow a material amendment after the cause has been actually submitted to the jury. 3 After Motion for Nonsuit. A motion to amend does not come too late after the plaintiff has closed his testimony and the defendant has moved for a nonsuit, 4 or after a nonsuit has been entered, but before judgment rendered thereon. 5 After Mistrial. Amendments may be allowed after a mistrial. 6 c. AFTER REPORT OF REFEREE. After the report of a referee the court may allow an amendment of the pleadings. 7 But an amendment introducing a new and distinct claim will not be allowed without setting aside the report. 8 Amendments may be made to conform to the proof. 9 Where the finding of the referee has the effect of a judgment the court the record does not show that the court was asked to have the jury re- sworn, Arnold v. Arnold, 20 Iowa 273- 1. Sanders v. Knox, 57 Ala. 80; Burch v. Taylor, 32 Ala. 26; Baldwin v. Soule, 6 Gray (Mass.) 321; Hall v. Rice, 64 Cal. 443. Or after the argument. Yohe v. Robertson, 2 Whart. (Pa.) 155; Trees v. Eakin, 9 Ind. 554; Burke v. Snell, 42 Ark. 57. 2. Prater v. Miller, 25 Ala. 320. But the court may properly refuse to allow an amendment of the com- plaint after the jury have been in- structed to find for the defendant. Staley -v. Thomas, 68 Md. 439. 3. Wilbanks v. Willis. 2 Rich. (S. Car.) 108; Reynolds v. Quattlebum, 2 Rich. (S. Car.) 140; Law v. Franks, Cheves (S. Car.) 9; Watkins v. Canter- berry, 4 Port. (Ala.) 415; Ashley v. Robinson, 29 Ala. 112 ; Davis v. Chester, Minor (Ala.) 385; Hatfield v. Gano, 15 Iowa 177; Phillips v. Dodge, 8 Ga. 51; Maxwell v. Day, 45 Ind. 509. See also Smith v. Barker, 3 Day (Conn.) 280; Goldsmith v. Picard, 27 Ala. 142; Gluckauf v. Bliven, 23 Cal. 3I4- After Return of Findings. After the return of the findings of a jury, it is a questionable exercise of discretion to allow an answer to be amended upon a point submitted and already covered by the answer. Sears v. Collins, 5 Colo. 492. See also, in respect of amending a complaint, Hays v. Tur- ner, 23 Iowa 214. 4. Valencia v. Couch, 32 Cal. 339; Farmer v. Cram, 7 Cal. 135; Acquital v. Crowell, i Cal. 191; Kamm v. Cali- fornia Bank, 74 Cal. 191; Farrier v. Schroeder, 40 N. J. L. 601; Hasbrouck v. Winkler, 48 N. J. L. 431; Kelly v. Bragg, 76 Me. 207. See also Medbury v. Watson, 6 Met. (Mass.) 246. 5. Sibley v. Young, 26 S. Car. 415; Phillips v. Brigham, 26 Ga. 617. In Morris v. Burton, i Houst. (Del.) 213, leave to amend was refused after the court had announced its opinion on a motion for nonsuit. As to amendments after judgment of nonsuit, see infra. III, e, note. 6. Hester v. Hagood, 3 Hill (S. Car.) 195, where it is said that they are almost universally allowed where they do not hinder or delay the opposite party. 7. Proctor v. Andrew, i Sandf. (N. Y.I 70; Smith v. Proctor, i Sandf. (N. Y.) 72; Merrill v. Mellen, 24 N. H. 258; Buno v. Gomer, 3 Colo App. 456, where, however, the application was denied on the ground of laches. See also Bowman v. Earle, 3 Duer (N. Y.) 691 ; Newell v. Mahasko County Sav. Bank, 51 Iowa 178, holding that a reasonable excuse must be shown. 8. Joy v. Walker, 28 Vt. 442; Al- laben v. Wakeman, 10 Abb. Pr. (N. Y. Supreme Ct.) 162; Pardee v, Foote, 9 Abb. Pr. N. S. (N. Y. Supreme Ct.)77. 9. See supra, III, 9, b, (2). 603 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. will not allow an amendment that will make the referee's judgment irregular. 1 d. AFTER VERDICT. At common law the court has power to allow amendments after verdict, in furtherance of justice ; a and in most of the states this power is enlarged rather than restricted by statute. 3 When the statute provides for amendments "at any time," 4 or " at all times," they may be allowed after verdict. 5 1. Brady v. Nally, 26 Abb. N. Cas. (N. Y. Super. Ct.) 367. 2. Betts v. Hoyt, 13 Conn. 469; Bailey v. Musgrave, 2 S. & R. (Pa.) 219; Kendall v. White, 13 Me. 245. See also Hill v. Stocking, 6 Hill (N. Y.) 291 ; Richardson v. Johnson, 2 Call (Va.) 527; Valentine v. Farnsworth, 21 Pick. (Mass.) 176; Stanwood v. Scovel, 4 Pick. (Mass.) 422; Soper v. Soper, 5 Wend. (N. Y.) 112. Amending Oyer. In Daley v. Atwood, 7 Cow. (N. Y.) 483, amendment of plaintiff's oyer was allowed after ver- dict in his favor. Altering a Date. A declaration in assumpsit may be amended after ver- dict by altering the date on which the promise was laid. Bailey v. Musgrave, 2 S. & R. (Pa.) 219. Entering Nol. Pros. A demandant in a real action for the recovery of several parcels of land may by leave of court discontinue or enter a nol. pros, as to one or more of the parcels after verdict. Somes v. Skinner, 16 Mass. 348. Striking out Counts. The court may allow an amendment of the declara- tion by striking out a count upon v.'hich the jury could not agree. Soule v. Russell, 13 Met. (Mass.) 436. A Clerical Mistake by which the cause of action was laid after the commence- ment of the suit was amended after verdict, although it was made a ground of objection at the trial. Sargent v. Dennison, 2 Cow. (N. Y.) 515. Adding Material Allegations. In Rowell v. Bruce, 5 N. H. 381, it was held that the omission of a material allegation in a declaration cannot be supplied by amendment after verdict. See Betts v. Hoyt, 13 Conn. 469. In Indiana it has been held too late after verdict to allow a material amendment of the pleadings. Aiken v. Bruen, 21 Ind. 137; Redmans. Tay- lor, 3 Ind. 144; Heddens v. Younglove, 46 Ind. 212. Filing Plea in Bar. An application to amend by filing a plea in bar comes too late when made after verdict and without a showing of merits by affi- davit. Gillespie v. Davis, 5 Yerg. (Tenn.) 319. Defects Cured by Verdict. Where the issues joined necessarily require, on the trial, proof of facts defectively or imperfectly stated, or omitted, or without which it is not to be presumed that either the judge would direct or the jury have given the verdict, such defect, imperfection, or omission, though fatal if it had been demurred to, is cured by the verdict at common law. Pangburn v. Ramsay, n Johns. (N. Y.) 141. See also Bayard v. Malcolm, 2 Johns. (N.Y.) 550, infra, III, n,/,(i). 3. In Lemon v. Dryden, 43 Kan. 477, an answer was amended after verdict. Adding New Counts. Under the Illi- nois Practice Act it is proper to al- low an amendment of the declaration after verdict and pending a motion for a new trial by the filing of ad- ditional counts upon the same cause of action. Independent Order, etc., v. Paine, 122 111. 625. Striking Out Party. In Cogshall v. Beesley, 76 111. 445, it was held that under the Illinois Practice Act of 1874 the court may allow the plaintiff after verdict against two defendants to amend by discontinuing as to one of them. So in Ridley v. Knox, 138 Mass. 83. Where one sues for the use of an- other the name of the nominal plain- tiff may be struck out after verdict. Whitaker v. Pope, 2 Woods (U. S.) 463, decided under the Georgia Code. Eeviving Old Issue. There is no error in refusing leave to amend the answer where the question proposed to be raised has been virtually de- cided against the defendant by special verdict. Ault v. Wheeler, etc., Mfg. Co., 54 Wis. 300. See also Eddy v. Stantons, 21 Wend. (N. Y.) 255. 4. Ball v. Keokuk, etc., R. Co., 71 Iowa 306. 5. Price v. New Jersey R., etc., Co., 31 N. J. L. 229. 604 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Amendments after verdict, so as to conform the pleadings to the proofs, are almost a matter of course. 1 The prayer of the complaint cannot be amended after verdict where the effect will be to create a verdict which was not rendered in fact. 2 Terms of Amendment. Where amendments of substance are allowed after verdict it is usually required that the applicant pay the costs and consent to a new trial. 3 But an amendment may be allowed without a new trial where the verdict would not have been affected by the amendment if it had been made before trial. 4 After Judgment Arrested. Where judgment was arrested for want of jurisdiction, the declaration omitting to state the value of the property in controversy, the plaintiff was permitted to amend by adding the averment. 5 e. AFTER JUDGMENT. At common law the court has power to allow an amendment of the pleadings in a case until final judg- ment ; 6 and authority is given by statute in most of the states to allow amendments after as well as before judgment by the inser- tion of new allegations material to the case. Although this is an extraordinary power and should be sparingly exercised, 7 amend- 1. See sttpra, III, 9, b, (z). It is intimated in Joy v. Walker, 28 Vt. 442, that such amendments can be made only by express statutory au- thority. 2. Bradley z/.Shafer, 65 Hun (N. Y.) 622. 3. Floyd v. Woods, 4 Yerg. (Tenn.) 165; Richardson v. Johnson, 2 Call (Va.) 527. See supra, III, 10, d, as to amending the ad damnum, and infra, III, 16, c. Error Cured. Where the trial judge allowed an amendment after verdict, but stated to opposing counsel that if they would show by affidavit that the defendant had any defense to offer to the complaint as amended which had not been already offered, he would either refuse to allow the amendment or would set aside the verdict, it was held that any possible error was cured. Morgan v. Smith, 95 N. Car. 396. 4. Morse v. Whitcher, 64 N. H. 591; Merrill v. Perkins, 59 N. H. 343, an amendment changing the form of the action; Buckminster v. Wright, 59 N. H. 153; Peaslee v. Dudley, 63 N. H. 220; Boudreau v. Eastman, 59 N. H. 407; Roulo v. Valcour, 58 N. H. 347; Janvrin v. Fogg, 49 N. H. 340. 5. Lanning v. Dolph, 4 Wash. (U. S.)62 9 . In Thomas v. Leonard, n Wend. (N. Y.) 53, an amendment was allowed after motion in arrest of judgment; and in Williams v. Hingham, etc.,. Turnpike Co., 4 Pick. (Mass.) 341, after arrest of judgment, the court thereupon granting a new trial. 6. Tidd Pr. 697; Bacon's Abr., tit. Amendment and Jeofail; Heard's Civil PI. 69; Chouteau v. Hewitt, 10 M^. 131; Van Dyke v. Van Dyke, 19 N. j. L. i; State Bank v. Simpson, 2 Spears (S. Car.) 41; Travis v. Peabody Ins. Co., 28 W. Va. 583; Tabb v. Gregory, 4 Call (Va.), 225; Shugart v. Orr, 5 Yerg. (Tenn.) 192. The court may set aside its judg- ment during the term and allow an amendment. Herdic v. Woodward, 75 Pa. St. 479. 7. North -v. Webster, 36 Minn. 99; Deere v. Nelson, 73 Iowa 186; Field v. Hawxhurst, 9 How. Pr. (N.Y. Supreme Ct.) 75; Egert v. Wicker, 10 How. Pr. (N. Y. Supreme Ct.) 193; Cunliff v. Delaware, etc., Canal Co. (Supreme Ct.), 4N. Y. St. Rep. 775, where, how- ever, the defendant was allowed to amend by setting up the statute of limitations. But see Clinton v. Eddy, 54 Barb. (N. Y.)54; Englis v. Furniss, 3 Abb. Pr. (N. Y. C. PI.) 82. In O'Connell v. Cotter, 44 Iowa 48, and Davis v. Chicago, etc., R. Co., 83 Iowa 744, an amendment was allowed after judgment. See also Spink v. McCall, 52 lowa. 432. In O'Connell v. Cotter, 44 Iowa 48,. 605 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. ments have been allowed under special circumstances even after satisfaction of the judgment. 1 If the amendment is allowed, refusal of leave to amend after judg- ment was held under the circum- stances to be reversible error. In Bicklin v. Kendall, 72 Iowa 490, leave to amend was denied. In Felch v. Beaudry, 40 Cal. 439, leave was refused on the ground of laches. In Respect of Parties. In Sherman v. Fream, 8 Abb. Pr. (N. Y. Supreme Ct.) 33, the plaintiff was allowed to strikeout some of the defendants after judgment. In Tasker v. Wallace, 6 Daly(N. Y.) 364, a mistake in the name of a party v;as amended after judgment and re- turn of execution. Inserting Demand for Return of Prop- erty. In Jaggar v. Cunningham, 8 Daly (N. Y.), 511, the plaintiff, in an action claiming the delivery of per- sonal property from defendant, was allowed to amend after judgment by inserting a demand for the return of the property, which had been inadver- tently omitted, the court setting aside the judgment and granting a new trial. To Conform to Judgment. In Martin v. Lott, 4 Abb. Pr. (N. Y. Supreme Ct.) 365, an amendment of the answer was allowed after judgment so as to conform thereto in respect of the re- lief sought. Further Defense to Counterclaim. In Brady v. Nally, 26 Abb. N. Cas. (N. Y. Super. Ct.) 367, it was held too late, after judgment of a referee, to amend the reply by setting up a fur- ther defense to the counterclaim. ToConformto Record Produced. W h e re judgment has passed in favor of the defendant on a plea of nul tie/ record, the court will not allow the plaintiff to amend so as to make his declaration conform to the record produced. Gu- lick v. Loder, 15 N. J. L. 416. Substituting Proper Plaintiff. In Per- ine v. Grand Lodge, 48 Minn. 82, \vhere a suit was brought on behalf of an infant but in the name of the guar- dian, an amendment was allowed after judgment by inserting the name of the ward as plaintiff. New Allegations, When Not Allowed. In North v. Webster, 3 Minn. 99, it was held that an amendment by inserting new allegations in complaint, not for the purpose of conforming to the proof nor to correct a mistake or error, could not be allowed. Imperfect Description. In Frey v. Owens, 27 Neb. 862, an imperfect de- scription of the land in controversy was corrected by amendment after judgment. Laches of Applicant. In Mills v. Miller,, 3 Neb. 87, there was no error in refusing leave to file an amended answer after judgment -and order for partition and actual partition made and reported and no reason assigned for the delay. After Nonsuit. Where the plaintiff has been nonsuited the court may set aside the nonsuit and allow the plain- tiff to amend even where he made no application to amend on the trial. Balcom v. Woodruff, 7 Barb. (N. Y.) 13; Bennett v. New York, i Sandf. (N. Y.) 658; Medbury v. Watson, 6 Met. (Mass.) 246; Meadow Co. v. Christ Church, 15 N. J. L. 52; Nelson v. Ayres, 12 N. J. L. 62; Trask v. Duval, 4 Wash. (U. S.) 97. But leave may be refused on the ground of laches, or where for other reasons its allowance would not be in furtherance of justice. Bitterling v. Deshler, 160 Pa. St. I. Additional Counts. The plaintiff may by leave of the court after verdict and judgment in his favor on one count amend his declaration by inserting other counts for the same cause of ac- tion and take a general verdict on all the counts. Kendall v. Garland, 5 Cush. (Mass.) 74. After Default. In Bash v.Van Osdol, 75 Ind. 186, after judgment against the defendant by default and the close of the term, it was held error to per- mit the plaintiff to amend so as to af- fect the damages. That an amendment may be allowed after default, see Bondurz>. Le Bourne, 79 Me. 21. 1. In Hatch v. Central Nat. Bank, 78 N. Y. 487, it was held that after satisfaction of a judgment it is within the discretion of the court to vacate it and allow an amendment of the com- plaint by adding a new cause of action, although by so doing the statute of limitations is avoided. In Brown v. Van Cleave, 86 Ky. 381, it was held that an amendment 606 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. the judgment should be vacated in order to give the opposite party an opportunity to controvert the new allegations; 1 or a sep- arate trial should be had upon the new issues. 2 Amendments may be allowed after judgment in order to con- form the pleading to the facts proved. 3 Pending Appeal or Writ of Error. Whether after appeal or writ of error the court in which the judgment was rendered has jurisdic- tion to allow an amendment of the pleadings, is a question upon which the decisions are not uniform. 4 /. IN APPELLATE COURTS (i) Where the Cause is Tried upon the Record. Although there is nothing in the nature of an appellate jurisdiction proceeding according to the common law which forbids the granting of amendments, 5 yet, except where amendments are made or considered as made under statutes of jeofails presently to be noticed, it is the practice of appellate courts reviewing a judgment of the court below on the record not to entertain original motions to amend, but to remand the cause for the purpose of making amendments which are found to be necessary. 6 Amendments of such a nature as would give the after judgment discharged was a null- ity, as there was nothing to amend. See also Bicklin v. Kendall, 72 Iowa 490. 1. Field v. Hawxhurst, 9 How. Pr. (N. Y. Supreme Ct.) 75; Hatch v. Cen- tral Nat. Bank, 78 N. Y. 487; Cunliff v. Delaware, etc., Canal Co. (Supreme Ct.), 4 N. Y. St. Rep. 775; Roome v. Jennings (Super. Ct.), 25 N. Y. Supp. 461; Boudinot v. Lewis, 3 N. J. L. 104; Neidenberger v. Campbell, n Mo. 359, after judgment by default; Burbank v. Harris, 32 La. Ann. 395. 2. Field v. Hawxhurst, 9 How. Pr. . Scott, 9 Bush (Ky.) 174. Where Question Not Res Adjudicata. In an action brought to recover for an exaction of excessive charges for the carriage of goods the statutory penalty of three times the excess, it was deter- mined in the appellate court that by reason of a repeal of the statute such an action would not lie. After the cause was remanded to the court be- low, it was held that the complaint might be amended so as to demand only the illegal excess, that question not being res adjudicata. Smith v. Chicago, etc., R. Co., 49 Wis. 443. Mere Recital of Facts. The state- ment in the original decree and in the opinion of the appellate court of cer- tain facts alleged in the complaint 620 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Matters Arising after Mandate. Nor can a plaintiff amend by stating a cause of action originating after the return of the record from the appellate court. 1 12. Effect of Amendments a. RETROACTIVE EFFECT (i) In General. When an amendment has been properly made and is for the same cause of action, the amended pleading is regarded as a continuation of the original pleading and takes effect as of the date when the latter was filed. 2 (2) Statute of Limitations Where Amendment Does Not Introduce a New Cause of Action. Where an amendment does not set up a new cause of action or bring in any new parties, the running of the statute of limitations is arrested at the date of filing the original plead- ing.* and admitted in the answer is noi such an adjudication of those facts as to preclude the defendant from subse- quently making an issue upon them by an amendment. Hall v. Wood- ward, 30 S. Car. 564. 1. Bell v. Williams, 10 La. 514. 2. Heath v. Whidden, 29 Me. 108; Brockaway v. Thomas, 32 Ark. 311; State v. Jacksonville, etc., R. Co., 15 Fla. 201; Schuyler Nat. Bank v. Bol- long, 28 Neb. 684; Branch Bank v. Morris, 13 Iowa 136; Clark v. Dela- ware, etc., Canal Co., n R. I. 36; Fame Ins. Co. v. Thomas, 10 111. App. 545; Verdery v. Barrett, 89 Ga. 349; Chattanooga, etc., R. Co. v. White- head, 89 Ga. 190; Agee v. Williams, 30 Ala. 636. Amendment After Remand. Where a judgment is reversed on appeal, a proper amendment filed after remand to the trial court relates to the com- mencement of the suit. Fleenor v. Taggart, 116 Ind. 189. Striking out a Party. Where the name of one of two defendants was stricken out by permission of the court on motion of the plaintiff and with the assent of the only defendant appearing in defense, the action stood as if it had been originally brought against the only remaining defendant, and a writ of review was properly brought in the name of the latter alone. Fling v. Trafton, 13 Me. 295. Intervening Fraudulent Conveyances. A suit upon the cause of action set forth in the amendment, provided it be not entirely new, will be consid- ered as pending from the beginning as regards an intervening fraudulent conveyance made by the defendant. Cooke v. Cooke, 43 Md. 522. Amendment of Bill of Costs. Where an original bill of costs is filed in time, an amendment of it relates back. Burnham v. Hays, 3 Cal. 115. Averment of Citizenship. In the fed- eral courts it is proper in an amended declaration to state the citizenship of the parties in the present tense with- out stating such citizenship as exist- ing at the time of the commencement of the suit, because the amendment relates back. Birdsall v. Perego, 5 Blatchf. (U. S.) 251. Correcting Misnomer in Summons. The amendment of a summons made after notice to the defendant by the correction of a mistake in the name of the plaintiff relates back to the time of service. Martin v. Coppock, 4 Neb. 173. Opens Default. That an amendment after default opens the default, see Tullis v. Scott, 38 Tex. 537. Notice of Trial Not Affected. Where a cause is at issue and noticed for trial and placed upon the calendar, an amendment of the pleading does not render another notice of trial neces- sary. Stevens v. Curry, 10 Minn. 316. New Process. Where the claim of the plaintiff is not substantially changed no new summons is neces- sary. Schuyler Nat. Bank -u. Bollong, 28 Neb. 684. 3. Michigan. Abbott v. Judge, 55 Mich. 410; Long v. Judge, 27 Mich. 164; Wood -v. Lane, 84 Mich. 521. New York. Risley v. Phoenix Bank, 2 Hun (N. Y.) 349; Elting v. Dayton, 67 Hun (N. Y.)425. Nebraska. McKeighan v. Hopkins, 19 Neb. 33. Ohio. Baltimore, etc., R. Co. v. Gibson, 41 Ohio St. 145. 621 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Where Amendment Introduces a New Cause of Action. If an amendment introduces a new cause of action the statute of limitations runs against it to the time when it is filed. 1 North Carolina. Ely v. Early, 94 N. Car. I. Georgia. Tift v. Towns, 63 Ga. 237; Akin v. Bartovv County, 54 Ga. 59; South Carolina R. Co. v. Nix, 68 Ga. 572; Rutherford v. Hobbs, 63 Ga. 243; Hines v. Rutherford, 67 Ga. 606. South Carolina. Bryce v. Massey, 35 S. Car. 127. Maine. Heath v. Whidden, 29 Me. 108. West Virginia. Kuhn v. Brown- field, 34 W. Va. 252. Vermont. Dana v. McClure, 39 Vt. 197. Tennessee. Burgie v. Sparks, n Lea (Tenn.), 84; Nauce v. Thompson, I Sneed (Tenn.) 321. Minnesota. Bruns -v. Schreiber, 48 Minn. 366. Indiana. Monticello v. Grant, 104 Ind. 168; Chicago, etc., R. Co. v. Bills, 118 Ind. 221. Alabama. Stringer v. Waters, 63 Ala. 361; Bradford v. Edwards, 32 Ala. 628; Dowling v. Blackman, 70 Ala. 303; American Union Tel. Co. v. Daughtery, 89 Ala. 191; Evans v. Richardson, 76 Ala. 329; Louisville, etc., R. Co. v. Hall, 91 Ala. 112; Ala- bama G. S. R. Co. v. Thomas, 89 Ala. 294; Alabama G. S. R. Co. v. Arnold, 80 Ala. 600; Ricketts v. Weeden, 64 Ala. 548; Sublett v. Hodges, 88 Ala. 491; Western Union Tel. Co. v. Way, 83 Ala. 542. Illinois. Blanchard v. Lake Shore, etc., R. Co., 126 111. 416. New Hampshire. Gagnon v. Con- nor, 64 N. H. 276. Pennsylvania. Smith v. Bellows, 77 Pa. St. 441; Clement v. Com., 95 Pa. St. 107. California. Kamm v. Bank of Cali- fornia, 74 Cal. 198; Coxv. McLaughlin, 76 Cal. 60; Lorenzana v. Camarillo, 45 Cal. 125; Link v. Jarvis (Cal., 1893), 33 Pac. Rep. 206; Preston v. Culbert- son, 58 Cal. 198. Missouri. Buel v. St. Louis Trans- fer Co., 45 Mo. 562; Lottman v. Bar- nett, 62 Mo. 159; Smith -v. Missouri Pac. R. Co., 56 Fed. Rep. 458; New- man v. Jefferson City, etc., R. Co., 19 Mo. App. 100 ; Lilly v. Tobbein, 103 Mo. 477. Iowa. Myers v. Kirt, 68 Iowa, 124; Cooper v. Mills County, 69 Iowa, 350; Case -v. Blood, 71 Iowa 632. 7^exas. Scoby v. Sweatt, 28 Tex. 713; Foster v. Smith, 66 Tex. 680; Becker v. Gulf City St. R., etc., Co., 80 Tex. 475; Mcllhenny v. Lee, 43 Tex. 205; Thompson v. Swearengin, 48 Tex. 555; Rowland v. Murphy, 66 Tex. 534; Gulf, etc.. R. Co. v. Mc- Gown, 73 Tex. 355; Hastings v. Kel- logg (Tex. Civ. App., 1894), 24 S. W. Rep. 1846; Tribby v. Wokee, 74 Tex. 142; Telfener v. Dillard, 70 Tex. 139; Mayer v. Walker, 82 Tex. 222; Turner v. Brown, 7 Tex. 489; Thouvenin v. Lea, 26 Tex. 612; Becton v. Alexander, 27 Tex. 659; Usher v. Skidmore, 28 Tex. 616; Hollis v. Chapman, 36 Tex. i; Garrett v. Muller, 37 Tex. 589; Kendall v. Riley, 45 Tex. 20; Jones v. Burgett, 46 Tex. 285; Killebrew v. Stockdale, 51 Tex.^g; Western Union Tel. Co. v. Brown, 62 Tex. 536; I. & G. R. Co. v. Irvine, 64 Tex. 529. New Jersey. Guild v. Parker, 43 N. J. L. 430. Pending Proceedings in Error. The statute will not run pending proceed- ings in error. Hutchinson v. Ains- worth, 73 Cal. 452. Amendment After Demurrer Sustained. The amendment relates back to the commencement of the suit, even though a demurrer to the complaint was sustained before permission given to amend it. Zieverink v. Kemper, 50 Ohio St. 208; Augusta R. Co. v. An- drews (Ga., 1893), 19 S. E. Rep. 713, after a demurrer sustained on the ground that the complaint stated no cause of action. As to what constitutes a new cause of action, see supra, III, 6, b, t, d, where many cases referred to in this note are again cited, together with a statement of the nature of the amendments filed therein. 1. Michigan. Wingert v. Carpenter (Mich., 1894), 59 N. W. Rep. 662; People v. Judge, 35 Mich. 227 ; Gorman v. Judge, 27 Mich. 138; Nugent v. Adsit, 93 Mich. 462; Long v. Judge, 27 Mich. 164. Ohio. Hills v. Ludwig, 46 Ohio St. 374- Maryland. Schulze v. Fox, 53 Md.37. North Carolina. Hester v. Mullen, 107 N. Car. 724. 622 Of Pleadings, etc. , at AMENDMENTS. Common Law, under Codes, etc. Question, How Eaised. The question whether an amended com- plaint introduces a new cause of action barred by the statute of limitations cannot be raised by motion to strike out the amend- ment. The statute of limitations must be pleaded so as to give the plaintiff an opportunity to set up exceptions. 1 Where New Parties Are introduced. Where a pleading is amended the statute of limitations runs against a new plaintiff, 2 and Tennessee. Crofford v. Cothran, 2 Sneed (Tenn.) 492. United States. Sicard v. Davis, 6 Pet. (U. S.) 124. Alabama. Alabama G. S. R. Co. v. Smith, 81 Ala. 229; Barker v. Annis- ton, etc., R. Co., 92 Ala. 314; Mohr v. Lemle, 69 Ala. 180; Anniston, etc., R. Co. v. Ledbetter, 92 Ala. 326; Lans- ford v. Scott, 51 Ala. 557. Georgia. Jones v. Johnson, 81 Ga. 293; Ayers v. Daly, 56 Ga. 119. Pennsylvania. Leeds -v. Lockwood, 84 Pa. St. 70. California. Atkinson v. Amador, etc., Canal Co. 53 Cal. 102; Anderson v. Mayers, 50 Cal. 525; Buntin v. Chi- cago, etc., R. Co. 41 Fed. Rep. 744. Missouri. Holliday v. Jackson, 21 Mo. App. 660. Texas. McLane v. Belvin, 47 Tex. 493; Littlefield v. Fry, 39 Tex. 299; Erskine v. Wilson, 20 Tex. 77, 27 Tex. 117; Pridgin -v. Strickland, 8 Tex. 427; Beal v. Alexander, 6 Tex. 531; Governor v. Burnett, 27 Tex. 32; Will- iams v. Randon, 10 Tex. 74; Ayres v. Cayce, 10 Tex. 99; Gulf, etc., R. Co. v. Thompson (Tex. App., 1890), 16 S. W. Rep. 174; American Salt Co. v. Heidenheimer, 80 Tex. 344; Hopkins v. Wright, 17 Tex. 30. See also Taylor v. Keeler, 51 Conn. 397; Delaware County v. Andrews, 18 Ohio St. 49; Trousdale v. Thomas, 3 Lea (Tenn.) 715; Kaul v. Lawrence, 73 Pa. St. 410; Tyrrill v. Lamb, 96 Pa. St. 464; Wright v. Hart, 44 Pa. St. 454; Stout v. Stout, 44 Pa. St. 457; Trego v. Lewis, 58 Pa. St. 463. Reasserting Claim after Dismissal. Where an action was brought on two promissory notes and during the trial it was dismissed as to one of them without prejudice, and afterwards the plaintiff amended his petition and claimed the same amount as balance due on a settlement which the plead- ings showed was outside of the period of limitations, it was error to overrule a demurrer setting up the statute of limitations. Parsons Water Co. v. Hill, 46 Kan. 145. New Promise. Where a new promise or acknowledgement of the debt is pleaded by amendment the statute of limitations runs against it until the filing of the amendment. Erskine v. Wilson, 20 Tex. 77, 27 Tex. 117. In New York it has been said that the court probably has power to permit an amendment setting up a new cause of action barred by the statute of limita- tions and thereby defeat that defense. Hatch v. Central Nat. Bank, 78 N. Y. 487; Eggleston v. Beach (Supreme Ct.), 33 N. Y. St. Rep. 835, n N. Y. Supp. 525. But that the power should be spar- ingly exercised, and only under cir- cumstances showing that the plaintiff has pursued his rights with diligence and is free from fault or neglect, and that the fact that he has discovered his inability to prove the cause of ac- tion declared on is no ground for granting such relief, see Eggleston v. Beach (Supreme Ct.), 33 N. Y. St. Rep. 835, ii N. Y. Supp. 525. In Davis v. New York, etc., R. Co., no N. Y. 646, 14 N. Y. St. Rep. i, however, the court said: " There is no doubt that the court may at special term allow the amendment of a com- plaint by introducing therein even a cause of action barred by the statute of limitations; but in such case the defendant must not be deprived of his defense of the statute." See also Quimby v. Claflin, 27 Hun (N. Y.) 611. Statute of Limitations, How Pleaded. If the defendant desires to plead the statute of limitations to an amend- ment introducing a new cause of ac- tion, he should properly plead it only to the amendment and not to the original and amendment. Pennsyl- vania Co. v. Sloan, 125 111. 72. 1. Jeffersonville, etc., R. Co. v. Hendricks, 41 Ind. 48. 2. Kille v. Ege, 82 Pa. St. 102; Flat- ley v. Memphis, etc., R. Co., 9 Heisk. (Tenn.) 230; Telfener v. Dillard, 70 Tex. 139; Willink v. Renwick, 22 Wend. (N. Y.) 608; Cogdell v. Exum, 69 N. Car. 464. 623 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. in favor of a new defendant, 1 to the date of filing the amend- ment by which he is brought into the case. b. EFFECT UPON INJUNCTION Without Prejudice. An amended complaint which does not affect the identity of the action may be filed by leave of court without prejudice to a preliminary injunc- tion already granted. 2 Original Defects Cured. And if the complaint upon which an injunc- tion is granted is defective, but the defects are cured by an amendment which states good ground for an injunction, a motion to dissolve the injunction based upon the original defects should be overruled. 3 c. As A WAIVER OF ERROR IN PREVIOUS RULINGS. Where a party amends a pleading after it has been pronounced insuffi- cient he cannot assign the ruling of the court as error. 4 But a Plaintiff Not Entirely New. Where a suit is brought in the name of an asso- ciation incompetent to sue, an amend- ment substituting some of its mem- bers as plaintiffs relates to the com- mencement of the suit for the purpose of avoiding the bar of the statute of limitations. Lilly v. Tobbein, 103 Mo. 477- So where an amendment merely in- serts the representative character of plaintiff, Hines v. Rutherford, 67 Ga. 606; Rutherford v. Hobbs, 63 Ga. 243; Tift v. Towns, 63 Ga. 237; or strikes it out, Fame Ins. Co. v. Thomas, 10 111. App. 545; or where it merely corrects an error in assigning a party to the wrong side of the case. Buel v. St. Louis Transfer Co., 45 Mo. 562. 1 Jeffers v. Cook, 58 Cal. 147; Seibs v. Engelhardt, 78 Ala. 508, an action against a husband to en- force a mechanic's lien where the wife was brought in by amendment after the statutory period had elapsed. Leatherman v. Times, 88 Ky. 291, a suit against a corporation and an amendment bringing in the individual members. Woodward v. Ware, 37 Me. 563; Lagow v. Neilson, ro Ind. 183; Shaw v. Cock, 78 N. Y. 194. Not a New Defendant. Where an ac- tion on a judgment against several joint debtors is originally brought against one of them alone, a subse- quent amendment to the complaint by inserting the names of the other judg- ment debtors relates back to the com- mencement of the suit as against them. Lewis v. Adams, 70 Cal. 403. See also the quare in Woodward v. Ware, 37 Me. 563. Where an executor is a defendant on a cause of action founded on the liability of the testator and a coexec- utor is added by amendment the latter cannot set up the statute of limitations to save the estate from liability. Burgie v. Sparks, n Lea (Tenn.) 84. 2. Barber v. Reynolds, 33 Cal. 497; Shipman v. Superior Court (Cal. ,1887), 12 Pac. Rep. 787; Seldon v. Vermilya, 4 Sandf. Ch. (N. Y.) 573; Furniss v. Brown, 8 How. Pr. (N. Y.) 59; Walker v. Walker, 3 Kelley (Ga.) 302; Warbur- ton v. London, etc., R. Co., 2 Beav. 254; Pratt v. Archer, i Sim. & Stu. 254; Pickering v. Hanson, 2 Sim. 488. 3. Crawford v. Paine, 19 Iowa 172; Sweatt v. Faville, 23 Iowa 321. Where Amendment Abandons Original. But if the plaintiff, instead of so amending his petition as to make it appear therefrom that his purpose is to support his existing writ, files what is in fact a new petition, though styled an amended one, and asks therein for a new writ, the action of the court in sustaining a motion to dissolve the writ filed before the amendment will not be disturbed. Des Moines N. & R. Co. v. Carpenter, 27 Iowa 487. Radical Defects not Cured. In Rhodes v. Union Bank, 7 Rob. (La.) 63, it was held that after a motion to dissolve an injunction the plaintiff cannot, by filing an amended petition containing new allegations, cure a radical defect in his original proceedings, and thereby give effect to an injunction originally il- legal. 4. Amendment of Complaint After De- murrer Sustained waives an objection to the ruling. Lane v. Burlington, etc., R. Co., 52 Iowa 18; Taylor v. 624 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. party by amending one paragraph of a pleading does not waive the exception to a ruling upon a demurrer to another paragraph of the same pleading. 1 d. ORIGINAL PLEADING SUPERSEDED. The original complaint is superseded and its effect as a pleading destroyed by filing an amended complaint which is complete in itself and does not refer Galland, 3 Greene (Iowa) 17; Smith v. Cedar Falls, etc., R. Co., 30 Iowa 244; City of Muscatine.z'. Keokuk, 47 Iowa 350; Philips v. Hosford, 35 Iowa 593; Ford v. Jefferson County, 4 Greene (Iowa) 273; Gale v. Tuolumne Water Co., 14 Cal. 25; Loveland v. Garner, 71 Cal. 541; Walsh v. McKeen, 75 Cal. 519; Earp v. Putnam County, 36 Ind. 470; Kennedys. Anderson, 98 Ind. 151; Murphy v. Peter, 56 Ind. 545; Short v. Spotts, 58 Ind. 29; Mutual Benefit L. Ins. Co. v. Cannon, 48 Ind. 264; Scot- ten v. Longfellow, 40 Ind. 23. See also Bobb v. Bobb, 89 Mo. 411; Birn- baum v. Crowinshield, 137 Mass. 177; Vaiden v. Bell, 3 Rand. (Va.) 448; Moore v. Wade, 8 Kan. 380; Kirk- patrick v. Holman, 25 Ind. 293. In Alabama under the Code, 2255, if the plaintiff amends after demurrer sustained it is no waiver unless the record shows that in consequence of the amendment he sustained no injury by the ruling. Williams v. Ivey, 37 Ala. 242, overruling Sheppard v. Shel- ton, 34 Ala. 652, and limiting Stall- ings v. Newman, 26 Ala. 300, to cases commenced before the Code. Amendment of Complaint After Plea in Abatement. If the plaintiff amends by leave after plea in abatement filed to his declaration, it amounts to a con- fession of the plea and disposes of it. Webster f.Tiernan, 4 How. (Miss.) 352. Amendment of Plea or Answer After Demurrer Sustained is a waiver of error. Martin v. Capital Ins. Co., 85 Iowa 643; McClintock v. Crick, 4 Iowa 453; Duncan v. Hobart, 8 Iowa 336; Frank- lin v. Twogood, 18 Iowa 515; Ham v. Carroll, 17 Ind. 442; Jay v. Indian- apolis, etc., R. Co., 17 Ind. 262; Pat- rick v. Jones, 21 Ind. 249; State v. Hay, 88 Ind. 74; White v. Garretson, 34 Ind. 514; Miles v. Buchanan, 36 Ind. 490; Wingate v. Wilson, 53 Ind. 78; Robinson v. L'Engle, 13 Fla. 482; Sanford v. Cloud, 17 Fla. 532; Mayo v. Keyser, 17 Fla. 744; Heaton v. Myers, 4 Colo. 59; Hurd v. Smith, 5 Colo. 233; Derry v. Ross, 5 Colo. 295. The ruling is not brought up for re- view from a final judgment rendered for the plaintiff upon the amended an- swer. Forcheimer v. Holly, 14 Fla. 239. Striking Out an Answer or a part thereof is not assignable as error if the defendant files an amended an- swer. Irvinson v. Van Riper, 34 Ind. 140; Hexter v. Schneider, 14 Ore- gon 184; Gale v. James, n Colo. 540. And this is so even if the defend- ant excepts to the action of the court. Gale v. Foss, 47 Mo. 276. Waiver of Ruling on Evidence. Where the court refused to permit evidence offered by the defendant to go to the jury on the ground that it was not pertinent to the issue made by the pleadings, whereupon the defendant obtained leave to amend and did amend his answer, setting up the fact sought to be established by the evi- dence offered, it was held that by pleading over he waived his objection to the ruling of the court. Rees v. Leech, 10 Iowa 439. Amendment of Application to be Made a Party. One who, after the overruling of his application to be substituted as a party to an action, amends his appli- cation, which is then granted, waives his right to appeal from the former ruling. Bixby v. Blair, 56 Iowa 416. 1. Washburn v. Roberts, 72 Ind. 213, an amendment of a complaint after demurrer. Setting up a New Defense. So where an answer is held bad on demurrer the defendant does not waive his excep- tion to the ruling on the demurrer by amending his answer so as to set up new defenses. Ingham v. Dudley, 60 Iowa 16, holding that a waiver occurs only where the amendment is designed to supply the omission or to cure the defect pointed out by the demurrer. Abandoning Counterclaim. Where a counterclaim set up in one paragraph of an answer was held bad on de- murrer, the defendant did not waive his exception to the ruling by filing an amendment to another paragraph, in which amendment there was no refer-, ence to the counterclaim. Folsom v. Winch, 63 Iowa 477. I Encyc. PI. & Pr. 40 625 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. to or adopt the original as a part of it. 1 And where a count is struck out of a declaration by leave of the court, the declaration must be considered as if that count had never been introduced. 2 An Amended Answer, complete in itself, is to be considered as if it 1. Roderick v. Baltimore, etc., R. Co., 7 W. Va. 54; Seneca County Bank v. Garlinghouse, 4 How. Pr. (N. Y. Supreme Ct.) 174; Wood v. Gibbs, 35 Miss. 559; Anderson v. Robertson, 32 Miss. 241; Hawkins v. Massie, 62 Mo. 552; Jones v. Frost, 28 Cal. 245; Kay v. Fredrigal, 3 Pa. St. 221; White v. Hampton, 9 Iowa 181; Thompson v. Toohey, 71 Ind. 296; Westerman -v. Foster, 57 Ind. 408; Yancy v. Teter, 39 Ind. 305; Specht v. Wiliamson, 46 Ind. 599; Kirkpatrick v. Holman, 25 Ind. 293; McFadden v. Ellsworth M. & M. Co., 8 Nev. 57; State v. Simp- kins, 77 Iowa 676, holding that the original is so far out of the case that it cannot be considered upon demurrer to the substituted petition. See also Boisse v. Langham, i Mo. 572; Basye v. Ambrose, 28 Mo. 39; Flint v. Gauer, 66 Iowa 696; Young v. Broadbent, 23 Iowa 539; Braindeis v. Neustadtl, 13 Wis. 142. Illustration. Where a complaint in foreclosure names a partnership as a party defendant, and an amended com- plaint is filed naming each member of the partnership as a defendant, a judgment for a deficiency cannot be rendered against the partnership; and the fact that service of summons and the original complaint was made on the partnership is immaterial. La Societe, etc., v. Weidemann, 97 Cal. SO?- A pleading was styled in the cap- tion, " the third amended answer," and commenced as follows : " Now comes the defendant and for an amended answer," etc. It was held that it took the place of and was not an amendment to the preceding an- swer filed, and that after a demurrer was sustained thereto the defendant was not entitled to a trial on the issues raised by the preceding answer. Bates v. Kemp, 12 Iowa 99. The Original Complaint as Evidence. The allegations of the original com- plaint are not admissible as evidence for or against the plaintiff. Mecham v. McKay, 37 Cal. 154; Wheeler v. West, 71 Cal. 126; Ponce v. McElvy, 51 Cal. 222. See also Turner r. Mad- den, 15 La. Ann. 510. Even though they were sworn to for the purpose of obtaining a writ of sequestration. Coats v. Elliott, 23 Tex. 606. Contra. The statements and admis- sions in the original pleadings are evi- dence for all the purposes of the trial. Smith v. Pelott (Supreme Ct.), 8 N. Y. Supp. 301, citing Holmes if. Jones, 121 N. Y. 461. See also Mulligan v. Illinois Cent. R. Co., 36 Iowa 181. A party making allegations in his petition which constitute distinct items of proof may be bound by such allegations, notwithstanding he may have superseded the petition by an amended one. Aliter where aver- ments are made of the existence of ultimate facts to be established by evi- dence. Johnson v. McGrevv, 42 Iowa 555- The Rule Qualified. An original com- plaint is not superseded by an amend- ment which alleges substantially the same cause of action, and it remains "a pleading" within the meaning of the California Code of Civ. Pro. 670, subd. 2, which makes the pleadings part of the judgment roll, and it may also be brought up by bill of excep- tions. Redingtonz/. Cornwell, 90 Cal. 49- Waiver of the Rule. Where a de- fendant treated both complaints as one in his answer by expressly answer- ing the allegations contained in both he waived his right to take advantage of the rule that an amended complaint supersedes the original. Kline v. Corey, 18 Hun (N. Y.) 524. Where Original Not Superseded. An amendment to a complaint (not an amended complaint) must be con- sidered together with the original. Wiggins v. Kirkpatrick (N. Car., 1894), 19 S. E. Rep. 152. See also Thomas v. Browder, 33 Tex. 783; Houston, etc., R. Co. v. Shafer, 54 Tex. 641. In Iowa, that filed as an amend- ment will not be considered as a sub- stitute unless it is therein so expressed, but both will be considered together. Cooley v. Brown, 35 Iowa 475; Mont- gomery v. Shockey, 37 Iowa 107. 2. Prescott v. Tufts, 4 Mass. 146; Colvin v. Peck, 62 Conn. 155. 626 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. were the only answer which had been interposed in the case ; * and when an answer is withdrawn by leave of the court the case is in the same condition as if no answer had been filed. 2 Effect of striking Out. But where an amended pleading is stricken out the original is restored. 3 e. RIGHT TO PLEAD DE NOVO Substantial Amendments. Where a complaint to which a plea or answer has been filed is amended in matter of substance the defendant has an absolute right to plead de novo.* And if he avails himself of the right, his original 1. Hanscom v. Herrick, 21 Minn. 9; Sands v. Calkins, 30 How. Pr. (N. Y. Supreme Ct.) i; Kapp v. Barthan, i E. D. Smith (N. Y.) 622; Cramer v. Mack (District of New York), 12 Fed. Rep. 803; Dunlop v. Robinson, 12 Ohio St. 530; Barnsville First Nat. Bank v. Western Union Tel. Co., 30 Ohio St. 555; Ticknor v. Voorhies, 46 Mo. no; Young v. Woolfolk, 33 Mo. no; Wells v. Applegate, 12 Oregon 208, holding that all motions and demurrers relat- ing to the original cease to be a part of the record; Mecham v. McKay, 37 Cal. 154 ; Kuhland v. Sedgwick, 17 Cal. 123; Kentfield v. Hayes, 57 Cal. 409; Oilman v. Cosgrove, 22 Cal. 356; Smith v. Wigton, 35 Neb. 460; Lan- man v. County of Des Moines, 29 Iowa 310. See also Mitchell v. Will- iamson, 9 Gill (Md.) 71. Original as Evidence. In Strong v. Dwight.nAbb. Pr.N.S. (N.Y. Supreme Ct.) 319, it was held that admissions in a sworn answer struck out by amendment may be used as evidence on the trial subject to be rebutted by the defendant. In Brown v. Pickard, 4 Utah 292, it was held that an answer which has been superseded by an amended an- swer is still admissible in evidence against the defendant as an admission of the facts alleged therein. Where Original Not Superseded. When an amended answer does not take the place of the original on file both must must be considered together in deter- mining the issues joined. Pharo v. Johnson, 15 Iowa 560. See also Nun- nerlyn v. Alexander, 38 Tex. 125; Kostendader v. Pierce, 37 Iowa 645. 2. Roberts v. State Ins. Co., 26 Mo. App. 92. 3. Spooner v. Cady (Cal., 1894), 36 Pac. Rep. 104. See also cases cited in note 2, page 626. 4. Yates v. French, 25 Wis. 661; Gill v. Young, 88 N. Car. 58; Matlock v. Gray, 4 Hawks (N. Car.) i, where the court said that every substantial amendment in the writ or declaration should be accompanied with permis- sion to the defendant to amend his plea; and so permission to the defend- ant to amend his plea should be ac- companied with a permission to the plaintiff to amend his replication. Cleveland v. Cohrs, 13 S. Car. 397; Adams v. Adams, 39 Ala. 603; Ken- nedy v. Dear, 4 Port. (Ala. ) 423 ; Butler v. Thompson, 2 Fla. 16; Jones v. Grantham, So Ga. 472 ; Bennett v. Collins. 52 Conn, i; Estlin v. Ryder, 20 La. Ann. 251; Harney v. Appel- gate, 57 Cal. 205 ; Green v. Gill, 5 Mass. 379; Thompson v. Musser, i Dall. (U. S.) 464 ; Stanton v. Ken- rick (Ind., 1893), 35 N. E. Rep. 19; Nel- son v. Akeson, i 111. App. 165; Logan v. Tibbott, 4 Greene (Iowa) 389; Travis v. Peabody Ins. Co., 28 W. Va. 583; Schulze v. Fox, ^3 Md. 37; Kenny v. Van Cleef, i Hall (N. Y.) 165; People v. New York C. PL, 18 Wend. (N. Y.) 534, where a man- damus issued to compel the allow- ance; Bogart v. McDonald, 2 Johns. Cas. (N. Y.) 219; Work v. Ogden (Supreme Ct.), 16 N. Y. Supp. 268; Fink v. Manhattan R. Co., 15 Daly (N. Y.) 479, 24 Abb. N. Cas. (N. Y.) 81, holding that defendant may demur and cannot be restricted to an answer; Harriott v. Wells, 9 Bosw. (N. Y.) 631, and State v. Green, 4 Gill & J. (Md.) 381, holding that defendant has a right to plead the statute of limita- tions. Compare, on the last point, Green z>. Gill, 5 Mass. 379, and Shaw v. Brown, 42 Miss. 309. Conflicting Authorities. But there is some confusion in the authorities, as was pointed out in Yates v. French, 25 Wis. 661. Thus in Barstow v. Ran dall, 5 Hill (N. Y.) 556, it was held that the opposite party is not entitled to answer de novo unless the right is 627 Of Pleadings, etc., at AMENDMENTS. Sommoa Law, under Codes, etc. pleading is to be considered as abandoned and may be stricken from the files on motion ;* but he may at his election stand upon his original pleading without pleading anew. 2 expressly reserved in the order grant- ing leave to amend. See also Good v. Martin, i Colo. 406. After Demurrer. Defendant's right to plead anew is not taken away be- cause a demurrer has been filed before the amendment is made. Myrick v. Myrick, 67 Ga. 771. Pleading in Abatement. The defend- ant has no right in pleading de novo to plead in abatement. Chapman v. Davis, 4 Gill (Md.) 166. Status of Amended Answer. The new answer may be amended to the same extent as an original pleading. Jones v. Grantham, 80 Ga. 472. In Texas the defendant may answer by exception or plea as in the first instance. Speake v. Prewitt, 6 Tex. 252. In South Carolina the defendant may either answer or demur. Cleveland v. Cohrs, 13 S. Car. 397. California. Amending a complaint in matter of substance opens a default on the original pleading, and the amendment must be served upon the parties, including the defaulted defend- ant, and each is entitled to an oppor- tunity to answer it. Cal. Code Cov. Pro. 432, 465; Thompson v. John- son, 60 Cal. 292; People v. Woods, 2 Sandf. (N. Y.) 652; Reinhart v. Lugo, 86 Cal. 395, holding that the bringing in of new parties in an action for partition is an amendment of sub- stance. But a defendant who appears and answers has no right to object on appeal that an amendment has not been served on codefendants. Mc- Gary v. Pedrorena, 58 Cal. 91. Mississippi. The plaintiff opens a default by amending thereafter and the defendant has a right to plead anew. Summers v. Foote, 28 Miss. 671. The defendant after an amendment by plaintiff may demur or plead in abate- ment or in bar. Shaw v. Brown, 42 Miss. 309. Objection on Appeal. An objection that the order permitting plaintiff to amend required the defendant to an- swer the amended complaint, is not available on appeal on the ground that it prevented the defendant from de- murring, nor because the order re- quired defendant to answer within twenty days after service of the amended complaint. The remedy in such cases is by motion for a re- settlement of the order. Second Ave. R. Co. v. Metropolitan El. R. Co., 58 N. Y. Super. Ct. 172. 1. Yates v. French, 25 Wis. 661. 2. Yates v. French, 25 Wis. 661,. where the amendment consisted only in changing the ad dammum clause. See also Power v. Ivie, 7 Leigh (Va.} 147, holding that a verdict on the original issue will stand, and Butler v. Thompson, 2 Fla. 9, to precisely the same point; Kennedy v. Dear, 4, Port. (Ala.) 423; Topeka v. Sherwood, 39 Kan. 690; Stevens v. Thompson, 5 Kan. 305. That no answer is necessary where the denials in the original answer are- applicable to the amendment, see fur- ther, Robinson v. Williamson, 7 Bush (Ky.) 604. Compare McAllister v. Ball, 28 111. 210. When New Answer Required. In Robinson v. Keys, 9 Heisk. (Tenn.) 144, leave to plaintiff to amend his declaration and to defendant for time to plead was held to be an abandon- ment of all existing issues; and that if plaintiff amends his declaration and no plea be filed to such amended dec- laration, the plaintiff is entitled to judgment by default. In Wilson v. Preston, 15 Iowa 240, the defendant having answered and the plaintiff having amended by add- ing a verification to his complaint, a default was granted against the de- fendant for refusing to verify his an- swer or to file a verified answer, as the statute required a verified answer to a verified complaint. In Iowa an amendment to a petition setting up a material fact which is not denied by the answer is regarded as admitted. Code of Iowa, 271; Eslich v. Mason City, etc., R. Co., 75 Iowa 443; Cluugh v. Adams, 71 Iowa 17. In Wisconsin. Averments in a com- plaint after answer will be taken as admitted unless a further answer thereto is made, except where the first answer is sufficiently broad to meet them. Kelly v. Bliss, 54 Wis. 187 ; Knips v. Stefan, 50 Wis. 286, a case within the exception mentioned. 628 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, otc. Formal Amendments. Where the amendment is in some mere -matter of form and does not affect the merits, the defendant is not as of right entitled to answer anew; 1 nor, on the other hand, will the court require him to do so. 2 13. Leave to Amend a. AMENDMENTS OF COURSE (i) Statu- tory Provisions Absolute Right. The statutes generally provide that the party filing a pleading may amend it once of course that is, without application to the court and without costs, 3 at any time before answer or demurrer thereto, 4 or before the Estoppel of Plaintiff. Where an amended complaint is filed and the plaintiff tries the case upon the theory that answers to the original complaint are addressed to the complaint as amended, he is bound by that theory on appeal. McFadden v. Fritz, no Ind. I, where it was insisted that the amended complaint took the answers from the record because they were not refiled. 1. Sinnet v. Mulhollan, 3 Martin (La.) 398; Harvey v. Corcoran, 60 Cal. 314, holding that after plaintiff had dis- missed as to certain defendants not served, an amendment erasing their names from the title was not such as to require service of it upon the de- fendant, or which entitled the defend- ant to answer anew, although the Cal- ifornia Code of Civ. Pro. ( 432, 465) requires all amendments to the com- plaint to be served and answered. See also Brock v. Martinovich, 55 Cal. 516; Smith v. Dorn, 96 Cal. 73, where the omission of the signature to the amended complaint was corrected by amendment, the court holding that at any rate the defendant could not com- plain of denial of leave to answer anew where the error was proved not to be prejudicial; Morford v. Dieffen- backer, 54 Mich. 593; Stanton v. Ken- rick (Ind., 1893), 35 N.E. Rep. 19; Santo v. Maynard, 57 Conn. 157; Harris v. Wickes, 28 Wis. 198, holding that a mere consolidation of two actions, in each of which a sufficient answer has been filed, without change in the plaintiff's allegations, does not render necessary a new or amended answer. At least, he is not entitled to time to answer. Missouri River, etc., R. Co. v. Owen, 8 Kan. 409 ; Topeka v. Sher- wood, 39 Kan. 690; Ellen v. Lewison, 88 Cal. 253; George v. Swafford, 75 Iowa 491 ; Estlin v. Ryder, 20 La. Ann. 251. 2. Cohen v. Hamill, 8 Kan. 621. If an amendment to a petition dees not change the issue and the court enters a default for want of an an- swer, it may in its discretion set the default aside on motion of the defend- ant. McQuade v. Chicago, etc., R. Co., 78 Iowa 688. 3. Where plaintiff amends of course within the time prescribed, he cannot be compelled to pay the costs of a mo- tion previously served on him to strike out irrelevant allegations, although in his amendment he complies with the requirement of the defendant's mo- tion. Welch v. Preston, 58 How. Pr. (N. Y. Supreme Ct.) 52. But a party cannot amend of course without costs if the opposite party has moved to set aside the first pleading for ir- regularity which is cured by the amendment. Williams v. Wilkinson, 5 How. Pr. (N. Y. Supreme Ct.) 357; Aymar v. Chase, i Code Rep. N. S. (N. Y.) 141; Hall v. Huntley, i Code Rep. N. S. (N. Y.) 21, note. 4. California Code Civ. Pro. sec. 472; New F0rCode, sec. 542. In California the plaintiff may amend his complaint of course at any time before issuing a summons where there has been no appearance of the de- fendant. Allen v. Marshall, 34 Cal. 165. In Kansas the plaintiff may amend his petition without leave, at any time before the answer is filed, without prej- udice to the proceedings. Civil Code, 133; Pierce v. Myers, 28 Kan. 364. In West Virginia the plaintiff may as of course amend his declaration at any time before appearance by the de- fendant, and in such case it is not nec- essary to summon the defendant 'to plead to the amended declaration. Phelps -v. Smith, 16 W. Va. 522. Amendments of Course After Demurrer. Some of the Codes also provide for amendments of course after demurrer and before the trial of the issue of law 629 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. period for answering it expires. 1 And in some jurisdictions the privilege of amending a pleading of course exists until a certain period after answer or demurrer thereto. 2 Where the right to amend is thus conferred, it is an absolute right of which a party cannot be deprived except for causes specified in the statute. 3 thereon. See California Code Civ. Pro. 472 ; Colorado Code 1887, 73; McDonald v. Hallicy, i Colo. App. 303- It is not allowable to amend of course after a pleading has been held bad on demurrer by filing another which differs in phraseology but not in substance. Epley v. Ely, 68 Iowa 70. In New York prior to the Code, under a rule allowing an amendment after demurrer, the defendant was not allowed to add new pleas. Dole v. Moulton, Col. & Cai. (N. Y.) 91; Ben- edict v. Ripley, 5 Cow. (N. Y.) 37. And unless there was a demurrer to the plea defendant could not amend it of course. Squires v. Mallory, 17 Johns. (N. Y.) 3; Benedict v. Ripley, 5 Cow. (N. Y.) 37. 1. New York Code, sec. 542. Time to Amend. After a motion made by the plaintiff for a receiver has been denied, but before the time for the defendant to answer the com- plaint has expired, the plaintiff may serve an amended complaint of course. Fausten v. Weishas (Su- preme Ct.), 6 N. Y. St. Rep. 730. By obtaining an extension of time in which to answer the defendant ex- tends the time of the plaintiff to amend his complaint as of course. Albert Palmer Co. v. Shaw, 64 How. Pr. (N. Y. Super. Ct.) 80. An order extending the time of the plaintiff to serve a reply to a counterclaim set up in the answer does not extend the time to amend the com- plaint of course. Dawson v. Bogart, 10 Civ. Pro. Rep. (N. Y. C. PI.) 56. 2. New York. The New York -Code, sec. 542, provides for amendment of course within twenty days after an- swer or demurrer to the original pleading, without prejudice to the proceedings already had. An amended complaint cannot be served as of course more than twenty days after the original, though de- fendant has not answeredordemurred. Clark -v. Humphrey, 2 Month. L. Bull. (N. Y.) 21. In New York a party by serving his pleading by mail does not thereby se- cure twice the time to serve an amended pleading which he would have had if the service had been a personal one. Armstrong v. Phillips, 60 Hun (N. Y.) 243. See Evans -v. Lichtenstein, 9 Abb. Pr. N. S. (N. Y. Supreme Ct.) 141; Toomey v. An- drews, 48 How. Pr. (N. Y. Supreme Ct.) 332; Washburn v. Herrick, 4 How. Pr. (N. Y. Supreme Ct.) 15. Where one of several defendants served with the complaint demurred thereto and the demurrer was noticed for argument, and nearly three months thereafter another defendant was served with the complaint, it was held that the plaintiff could not amend the complaint of course as to the defendant who had demurred, al- though the amendment was claimed within twenty days of the time when the last complaint, was served, thus giving effect to the words "without prejudice to the proceedings already had." George v. Grant, 56 How. Pr. (N. Y. Supreme Ct.) 244. See also Prudden v. Lockport, 40 How. Pr. (N. Y. Supreme Ct.) 46. Service of Amended Complaint. Where an amended complaint does not .substantially change the original con.plaint it need not be served upon defendants who have been served with the summons and complaint and have appeared in the action. Weil z/. Martin, 24 Hun (N. Y.) 645, distin- guishing McMurray v. McMurray, 60 Barb. (N. Y.) 117; People v. Woods, 2 Sandf. (N. Y.) 653. 3. Stillwell v. Kelly, 37 N. Y. Super. Ct. 417; Cooper v. Jones, 4 Sandf. (N. Y.) 699; Frank -v. Bush, 2 Civ. Pro. Rep. (N. Y. Marine Ct.) 250; Clifton v. Brown, 2 Civ. Pro. Rep. (N. Y. Supreme Ct.) 44; Allen v. Bid- well, 35 Iowa 218; Champion v. Rob- ertson, 4 Bush (Ky.) 17. See also Spooner v. Cady (Cal., 1894), 36 Pac. Rep. 104; Allen v. Marshall, 34 Cal. 165; Smith v. Pfister, 8 Civ. Pro. Rep. (N. Y. Supreme Ct.) 409. Pending Motion for Change of Venue. In Allen z: Bidwell, 35 Iowa 218, it was held that, pending a motion for a 630 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. (2) Waiver of Right. The plaintiff's right to amend as of course, after answer served, is waived by an application for leave to amend and becomes discretionary with the court. 1 Noticing the cause for trial is a waiver, 2 or appealing from an order giving leave to amend. 3 But a proceeding by the plaintiff for the ex- amination of the defendant before trial within the time allowed for amendments of course is not inconsistent with the right to amend and is not a waiver. 4 (3) What Amendments May Be Made By the Plaintiff. The plaintiff may amend his complaint by changing the place of trial, 5 or by changing the prayer for relief, 6 and, according to some change of venue and before answer, it was reversible error to refuse to allow the plaintiff to amend his petition so as to remove the ground for the mo- tion. Noticing a Cause for Trial does not affect the right of the other party to amend as of course. Washburn v. Herrick, 4 How. Pr. (N. Y. Supreme Ct.) 15; Ostrander v. Conkey, 20 Hun (N. Y.) 421; Clifton v. Brown, 2 Civ. Pro. Rep. (N. Y. Supreme Ct.) 44; Townsend v. Hillman, 18 Civ. Pro. Rep. (N. Y. City Ct.) 213. Where the plaintiff after noticing a cause for trial amends his complaint, and defendant serves an amended answer, the plaintiff must serve a new notice ot trial and file a new note of issue. Graham v. Stirling Ins. Co. (C. PL), 13 N. Y. Supp. 562. Effect of Amending of Course. As to the effect of an amendment in defeat- ing intervening motions by the op- posite party, see Burrall v. Moore, .5 Duer (N. Y.) 654; Frank v. Bush, 63 How. Pr. (N. Y. Marine Ct.) 282; Rider v. Bates, 66 How. Pr. (N. Y. Supreme Ct.) 129; and that it super- sedes the original pleading, Seneca County Bank v. Garlinghouse, 4 How. Pr. (N. Y. Supreme Ct.) 174; Fry v. Bennett, 3 Bosw. (N. Y.) 200, ajfd, 28 N. Y. 324; Dann v. Baker, 12 How. Pr. (N. Y. Supreme Ct.) 521; Sands v. Calkins, 30 How. Pr. (N. Y. Supreme Ct.) i; Fogg v. Edwards, 20 Hun (N. Y.) 90; Ne.v York, etc., Transp. Co. v. Hurd (Supreme Ct.), 8 N. Y St. Rep. 718; Kelly v. Christal, 8l N. Y. 619, aff'g 16 Hun (N. Y.) 242; Cramer v. Mack (District of New York), 12 Fed. Rep. 803; and that it relates back to the commencement of the action, Ward v. Kalbfleish. 21 How. Pr. (N. Y. Su- preme Ct.) 283. The right to amend of course does not operate per se as a stay of proceed- ings. Cusson v. Whalon, i Code Rep. N. S. (N. Y.)27. 1. Hamilton v. Carrington (S. Car., 1894), 19 S. E. Rep. 676. The right to amend of course is substantial, and a waiver must be clearly shown. Low v. Graydon, 14 Abb. Pr. (N. Y. Supreme Ct.) 443. 2. Phillips v. Suydam,6 Abb. Pr. N. S. (N. Y. Supreme Ct.) 289, 54 Barb. (N. Y.) 153. Contra, Clifton v. Brown, 2 Civ. Pro. Rep. (N. Y. Supreme Ct.) 44, 27 Hun (N. Y.) 231; Duychinck v. New York El. R. Co., 49 N. Y. Super. Ct. 244, 5 Civ. Pro. Rep.(N. Y.) 22; Car- penter v. Adams, 34 Hun (N. Y.) 429. A defendant who has accepted the conditions of an order granting him time to answer by waiving notice of trial, and consenting to place the cause on the calendar and consenting to'a reference, cannot amend his answer of course so as to raise new issues. Schwab v. Wehrle, 14 N. Y. Wkly. Dig. 529. 3. Shibley v. Angle, 37 N. Y. 626. 4. Stillwell v. Kelly, 37 N. Y. Super. Ct. 417. 5. Stryker v. New York Exch. Bank, 42 Barb. (N. Y.) 511, 28 How. Pr. (N. Y.) 20; Toll v. Cromwell, 12 How. Pr. (N. Y. Supreme Ct.) 79; Rector v. Ridgewood Ice Co., 38 Hun (N. Y.) 293; on appeal, 101 N. Y. 656; Moulton v. Beecher, i Abb. N. Cas (N. Y. Su- preme Ct.) 193; McCosker v. Smith (Supreme Ct.), 14 N. Y. Supp. 615, 38 N. Y. St. Rep. 227. See also in New York, before the Code, Hitchcock v. Post, I Wend. (N. Y.) 16. Contra, Wadsworth v. Georger, 18 Abb. N. Cas. (N. Y. Supreme Ct.) 199. Compare Faherty v. Schuyler Steam Tow Boat Line, 43 Hun (N. Y.) 432. 6. Getty v. Hudson River R. Co., 6 How. Pr. (N. Y. Supreme Ct.) 269. Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. authorities, by setting forth an entirely new cause of action. 1 But he cannot introduce matters that occurred subsequent to the commencement of the suit. 2 By the Defendant. Whatever form of pleading the defendant con- cludes to be necessary to present his defense may be amended by him, of course, within the time prescribed. 3 If it be an answer, the facts may be stated in another way or other facts added, or some of those first stated omitted entirely. 4 If it be a demurrer, its form may be changed or other additional grounds may be alleged. 5 But an issue of law cannot be changed by an amend- ment of course to an issue of fact a demurrer cannot be amend- ed by serving an answer; 6 nor can an issue of fact be converted Compare Gray v. Brown, 15 How. Pr. (N. Y. Supreme Ct.) 555. 1. Brown v. Leigh, 49 N. Y. 78; Sullivan v. Sullivan, 24 S. Car. 474, quare. See Mason v. Whitely, i Abb. Pr. (N. Y. Super. Ct.) 85; Thompson v. Minford, n How Pr. (N. Y. Supreme Ct.) 273; Spencer v. Tooker, 12 Abb. Pr. (N. Y. Supreme Ct.) 353, 21 How. Pr. (N. Y.) 333; Spuyten Duyvil Rolling Mills Co. v. Williams, I Civ. Pro. Rep. (N. Y. Supreme Ct.) 280; Wy- man v. Remond, 18 How. Pr. (N. Y. Supreme Ct.) 272; Griffin v. Cohen, 8 How. Pr. (N. Y. Supreme Ct.) 451; Fielden v. Carelli, 26 How. Pr. (N. Y. Supreme Ct.) 173; Townsend v. Platt, 3 Abb. Pr. (N. Y. C. PI.) 323. Jn New York, prior to the Code, a count in debt could be substituted of course for a count in assumpsit. Garlock v. Bellinger, 2 How. Pr. (N. Y. Supreme Ct.) 43. 2. Hornfager v. Hornfager, 6 How. Pr. (N. Y. Supreme Ct.) 13; Anthony v. Day, 5 N. Y. Wkly. Dig. 296. The objection may be waived. Beck v. Stephani, 9 How. Pr. (N. Y. Su- preme Ct.) 193. Mere Verification. A verification is no part of a complaint, and therefore a new complaint served as of course which is the same as the original ex- cept that it is verified is not an amended complaint, and the defendant may disregard it. George v. McAvoy, 6 How. Pr. (N. Y. Supreme Ct.) 200. Change of Parties is not an amend- ment of pleadings. Billings v. Baker, 6 Abb. Pr. (N. Y. Supreme Ct.)2i3. 3. Cashman v. Reynolds, 123 N. Y. 141. 4. Cashman v. Reynolds, 123 N. Y. 141. New Defense. In McQueen v. Bab- 63 cock, 3 Keyes (N. Y.) 428, it was held that the defendant may serve an amended answer containing a new de- fense. So in Brown v. Leigh, 49 N. Y. 48; Jackson v. Peer, 4 Cow. (N. Y.) 418; Wyman v. Remond, 18 How. Pr. (N. Y. Supreme Ct.) 272. The defendant may withdraw a counterclaim. Branagan z/. Palmer, 5 N. Y. Wkly. Dig. 521. An answer which is of the same legal effect as the original is not an amended answer. Snyder v. White, 6 How. Pr. (N. Y. Supreme Ct.) 321. 5. Cashman v. Reynolds, 123 N. Y. 141; Hedges v. Dam, 72 Cal. 520. 6. New York. Cashman v. Reynolds, 123 N. Y. 138, 33 N. Y. St. Rep. 70, 25 Abb. N. Cas. (N. Y.) 392, 19 Civ. Pro. Rep. (N. Y.) 161, ajf'g 56 Hun (N. Y.) 333, 31 N. Y. St. Rep. 143, 24 Abb. N. Cas. (N. Y.)455, 18 Civ. Pro. Rep. (N. Y.) 317, 9 N. Y. Supp. 614. The Foregoing Decision Sustains Smith v. Laird, 44 Hun (N. Y.) 530, 9 N. Y. St. Rep. 376; Wise v. Gessner, 47 Hun (N. Y.) 306, 14 N. Y. St. Rep. 268. See also Bleecker v. Bellinger, u Wend. (N. Y.) 179. // overrules Robertson v. Bennett, 52 How. Pr. (N. Y. Super. Ct.) 287; People v. Whitwell, 62 How. Pr. (N. Y. C. PI.) 383; Adams v. West Shore, etc., R. Co., 65 How. Pr. (N. Y. Su- preme Ct.) 329; Frank v. Bush, 63 How. Pr. (N. Y. Marine Ct.) 282, 2 Civ. Pro. Rep. (N. Y.) 250; Belts v. Kridell, 20 Abb. N. Cas. (N. Y. City Ct.) i, 12 N. Y. St. Rep. 163; Hoyt v. Shelp, 20 Abb. N. Cas. (N. Y. City Ct.) 10; Robostelli v. Noxon (Supreme Ct.), 5 N. Y. Supp. 315, 24 N. Y. St. Rep. 894; Carpenters. Adams, 34 Hun (N. Y.) 429; Barnes v. Gibbons, 20 Abb. N. Cas. (N. Y. City Ct.) 10. Of Pleadings, etc. , at AMENDMENTS. Common Law, under Codes, etc. into an issue of law an answer cannot be amended by a de- murrer. 1 (4) Wliat Pleadings May Be Amended, Under the statutes which provide for the amendment of course of any " pleading," a supplemental complaint may be so amended. 2 But a notice of lien cannot be amended, 3 nor an offer by the defendant for the plaintiff to take judgment; 4 nor can the plaintiff ame-nd the summons of course. 5 (5) Once Only. The Codes provide for amendment " once" of course, and a second amended pleading cannot be filed as of course after the first amended pleading has been stricken out, 6 nor, it seems, after the pleading has been once amended by an order of court. 7 In California any pleading may be amended of course, and without costs, after demurrer and before the trial of the issue of law thereon; and a de- murrer is not waived by filing an an- swer at the same time. Cal. Code Civ. Pro. 472. 1. Cashman v. Reynolds, 123 N. Y. 141. Relief, How Obtained. When a party has made a mistake by serving a de- murrer when he should have served an answer, or by serving an answer when he should have served a de- murrer, he can be relieved from the consequences of his mistake by an application to the court, and in that way permitted to substitute an answer for a demurrer, or vice versa ; which the court may allow to be done when satisfied that justice requires it, and upon such terms as it may consider just. Cashman v. Reynolds, 123 N. Y. 141. 2. Divine v. Duncan, 2 Abb. N. Cas. (N. Y.) 328, 52 How. Pr. (N. Y.) 446. In New York, prior to the Code, a plea of puts darrein continuance could be amended of course. Siver v. Smith, 18 Johns. (N. Y.) 310. A pleading which had been answered could not be amended. Cowles v. Cos- ter, 4 Hill (N. Y.) 550. A declaration in ejectment could be amended of course, Lounsbury v. Ball, 12 Wend. (N. Y.) 247; and a writ of scire facias when used as a pleading. Jackson v. Tanner, 18 Wend. (N. Y.) 526. 3. Diossy v. Martin, 6 N. Y. Wkly. Dig. 54- ,4. Vellerman v. King, 2 Edm. Sel. Cas. (N. Y.)37L Under the New York Code of 1849, a pleading not requiring an answer or demurrerwas not amendable of course. Plumb v. Whipples, 7 How. Pr. (N.Y. Supreme Ct.) 411; Lampson v. Mc- Queen, 15 How. Pr. (N. Y. Supreme Ct.) 345; Farrand v. Herbeson, 3 Duer (N. Y.) 655. Otherwise at the present time. Townsend v. Platt, 3 Abb. Pr. (N. Y. C. PI.) 323. 5. Walkenshaw v. Perzel, 32 How. Pr. (N. Y. Super. Ct.) 310; Diblee v. Mason, i Code Rep. (N. Y.) 37; Mc- Crane v. Moulton, 3 Sandf. (N. Y.) 736; Follower v. Laughlin, 12 Abb. Pr. (N. Y. Supreme Ct.) 105; Billings v. Baker, 6 Abb. Pr. (N. Y. Supreme Ct.) 213; Russell v. Spear, 5 How. Pr. (N. Y. Supreme Ct.) 142. See Peo- ple v. Monroe C. PI., 5 Wend. (N. Y.) 105. The pleadings cannot be amended as of course in any case in which the court would be prohibited from allow- ing an amendment on special motion. Spalding v. Spalding, 3 How. Pr. (N. Y. Supreme Ct.) 297. 6. Mussinan v. Hatton (N. Y. Super. Ct ), 28 N. Y. Supp. 1006, 31 Abb. N. Cas. (N. Y.) 254; Schmid v. Arguim- ban, 46 How. Pr. (N. Y. Super. Ct.) 105, holding that an answer cannot be amended without leave after it has been stricken out as sham. Compare Ross v. Dinsmore, 20 How. Pr. (N. Y. Supreme Ct.) 328, 12 Abb. Pr. (N. Y.) 4- 7. Jeroliman v. Cohen, I Duer (N. Y.) 629; Sands v. Calkins, 30 How. Pr. (N. Y. Supreme Ct.) i; White v. New York, 5 Abb. Pr. (N. Y. Super. Ct.) 322, 6 Duer (N. Y.) 685. See also, be- fore the Code, Lewis v. Watkins, 6 Hill (N. Y.) 230. Compare Lintzenich 633 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. (6) For the Purpose of Delay. At least one of the Codes pro- vides that if it is made to appear to the court that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading restored to its original form. 1 Except, perhaps, in extreme instances 2 an amendment made in bad faith cannot be treated as a nullity, but the question of intent must be passed upon by the court upon motion and proof before it can be stricken out. 3 (7) Remedy for Unauthorized Amendment. Where a party makes an unauthorized amendment the remedy of the other party is to refuse to accept, or to return promptly the amended pleading to the attorney by whom it is subscribed, 4 or to give notice that he disregards it, stating his reasons for so doing ; 5 and if the party persists in serving it, motion may be made to have it struck out or set aside. 6 It is never necessary to return the second time a pleading which has once been sent back to the pleader and by him again served. 7 b. WHEN LEAVE Is NECESSARY IMPLIED LEAVE. Except- ing such amendments as a party is allowed to make as of course,* v. Stevens (Supreme Ct.), 17 N. Y. St. Rep. 862, 3 N. Y. Supp. 395; Cooper v. Jones, 4 Sandf. (N. Y.) 699. 1. New York Code, 542. 2. Allen v. Compton, 8 How. Pr. (N. Y. Supreme Ct.) 251; Vanderbilt v. Bleeker, 4 Abb. Pr. (N. Y. Supreme Ct.) 289. See also Rogers v. Rath- burn, 8 How. Pr. (N. Y. Supreme Ct.) 466. 3. Frank v. Bush, 2 Civ. Pro. Rep. (N. Y. Marine Ct.) 250, 63 How. Pr. (N. Y.) 282; Ostrander v. Conkey, 20 Hun (N. Y.) 421; Griffin v. Cohen, 8 How. Pr. (N. Y. Supreme Ct.) 451; Rogers v. Rathburn, 8 How. Pr. (N. Y. Supreme Ct.) 466; Thompson v. Minford, n How. Pr. (N. Y. Supreme Ct.) 273; Burrall v. Moore, 5 Duer (N. Y.) 654; Spencer v. Tooker, 21 How. Pr. (N. Y. Supreme Ct.) 333; Con- quest v. Barnes (Supreme Ct.), 21 N. Y. St. Rep. 112. See Minrath v. Teacher's Land, etc., Co. (Supreme Ct.), 50 N. Y. St. Rep. 39, 21 N. Y. Supp. 204. 4. When such a party is a municipal corporation having a counsel chosen under a statute, the papers should be returned to such counsel. Taylor v. New York, n Abb. Pr. (N. Y. Su- preme Ct.) 255. 5. Hollister v. Livingston, 9 How. Pr. (N. Y. Supreme Ct.) 140. See also Follower v. Laughlin, 12 Abb. Pr. (N.* Y. Supreme Ct.) 105; Williams v. Sholto, 4 Sandf. (N. Y.) 641; Spencer v. Tooker, 12 Abb. Pr. (N- Y. Supreme Ct.) 353; Laimbeer v. Allen, 2 Sandf. (N. Y.) 648; Becker v. Weisner, 22 Alb. L. J. 156; Duval v. Busch, 14 Civ. Pro. Rep. (N. Y. City Ct.) 6; Farrand v. Herbeson, 3 Duer (N. Y.) 655 ; Chemung Canal Bank v. Judson, 10 How. Pr. (N. Y. Supreme Ct.) 133; Broadway Bank v. Danforth, 7 How. Pr. (N. Y. Supreme Ct.) 264; Russell v. Spear, 5 How. Pr. (N. Y. Supreme Ct.) 142; Walker v. Bissell, 3 Month. L. Bull. (N. Y.) 16. Prior to the Code, when amend- ments were made by rule of course, it saw not necessary that the rule should specify the amendment to be made. Mumford v. Stocker, i Cow. (N. Y.) 601. 6. Follower v. Laughlin, 12 Abb. Pr. (N. Y. Supreme Ct.) 105. In Epley v. Ely, 68 Iowa 70, an amendment after demurrer sustained which did not substantially differ from the original was stricken out. 7. Jacobs v. Marshall, 6 Duer (N. Y.) 689; Richardson v. Brooklyn, etc., R. Co., 22 How. Pr. (N. Y. Supreme Ct.) 368. 8. See the preceding section on Amendments of Course, page 629. 634 0f Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. no alteration can be made in the pleadings without leave of the court first obtained. 1 Thus a pleading which requires verifica- tion cannot be verified without leave of the court after it is filed. 2 Effect of Filing without Leave. An amendment filed without leave where leave is necessary may be treated as a nullity by the court and counsel, 3 or stricken from the files on motion. 4 The irregu- larity is not reached by demurrer. 5 1. Lewis v. Watkins, 6 Hill (N. Y.) 230; Jones v. Ilsley, I Allen (Mass.) 273; Clark v. Ward, 7 Gray (Mass.) 409; Missouri River, etc., R. Co. v. Wilson, 10 Kan. 105; Kirkland v. His Creditors, 7 Martin N. S. (La.) 511; Rost v. St. Francis's Church, 5 Martin N. S. (La.) 191; Robinson v. Williams, 3 Martin N. S. (La.) 665; Baines v. Higgins, 2 La. 220; Johnston v. Mar- shall, 14 Tex. 490; Thomas v. Young, 5 Tex. 253; Coles v. Kelsey, 2 Tex. 541- The Object of requiring parties to obtain leave to amend is to give notice of the amendment to the opposite party. Lee v. Hamilton, 12 Tex. 413. Mere Kemark by the Court. Where the court of its own motion during the trial of a case said, " I will allow the plaintiff to amend," with- out reciting the amendment, and no amendment was made and the trial proceeded as if the remark had not been made, and no motion was subse- quently made for the amendment, it was held irregular for the plaintiff to serve a proposed order reciting that motion was made to amend, etc., which was granted, and that a motion should have been made for leave to amend, so that the defendant could oppose it. Poole v. Hayes (Supreme Ct.), 17 N. Y. St. Rep. 685. No Prejudice. A judgment will not be reversed because an amendment was filed without leave where the opposite party was not prejudiced. Bell v. Chicago, etc., R. Co., 64 Iowa 321. In Texas it is not absolutely neces- sary to obtain formal leave of court to amend the petition unless the amend ment will operate as a continuance of the case ; in the latter event leave must be obtained and spread upon the record. Haynes v. Rice, 33 Tex. 167. See also Connell v. Chandler, II Tex. 249. Amendment Before Service Completed. Prior to the service of a writ the plaintiff may amend the declaration at his pleasure. Greeley v. Thurston, 4 Me. 479. But whether it can be so amended after service commenced, qucere, in the same case. 2. Lee v. Hamilton, 12 Tex. 413; Missouri River, etc., R. Co. v. Wilson, 10 Kan. 105. 3. Cowles v. Coster, 4 Hill (N. Y.) 550; Hyatt v. Kirk, 8 Ind. 178; Best v. Powers, 19 Ind. 85; Hopkins v. Cothran, 17 Kan. i73;'Orton v. Noonan, 31 Wis. 90; Bentleyz/. Dickson, I Ark. 165. 4. Allen v. Bidwell, 35 Iowa 86; Schoenhofen Brewing Co. v. Arm- strong (Iowa, 1894), 57 N. W. Rep. 436; Hyatt v. Kirk, 8 Ind. 178. Where an amendment is made with- out leave and by interlineation, it is not a ground for striking the entire original pleading from the files. Gil- more v. Nowland, 26 111. 200. Amending in Excess of Leave. Where a party amends in excess of the order granting him leave, so much of the amendment as is improper may be struck out. Brotherson v. Consaulus (Supreme Ct.), 5 N. Y. St. Rep. 105; Kelly v. Downing, 2 Brev. (S. Car.) 302. Filing Bad Pleas. If a party having leave to amend files bad pleas, they may be stricken out on motion. Par- ker v. Lewis, Hempst. (U. S.) 72. See also Pennington v. Ware, 16 Ark. 1 20. Laches in Taking Objection. Where an amended answer was filed without leave and without notice, but no ob- jection was made until the trial, it was held an abuse of discretion to refuse to permit the defendant to refile the amended answer on a proper showing. Lower King's River Water Ditch Co. v. King's River, etc., Canal Co., 67 Cal. 577- Motion to Strike Out After Jury Sworn. Where an amendment is filed without leave it is not too late to move to strike it out after the jury are sworn. Baines v. Higgins, 2 La. 220. 5. State v. Wright, 80 Ind. 425. 'Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. When Allowed to stand. An amended pleading filed without leave of court may be allowed to stand where it would be an abuse of discretion to refuse to permit it to be filed. 1 Waiver of irregularity. If the opposite party treats the amended pleading, filed without leave, as if it were properly filed the irregularity is waived. 2 Implied Leave. A refusal to strike out a pleading filed without leave is tantamount to permission to file it. 3 Presumption of Leave. Where a new party is joined as plaintiff the presumption may be indulged upon appeal that the amendment was made by leave of court. 4 C. APPLICATION FOR LEAVE Suggestion by the Court. While it has been held not to be the duty or within the province of the court to make, suggest, or order amendments sua sponte, but only upon application, 5 there are authorities affirming the propriety of such a course. 6 1. Miller v. Perry, 38 Iowa 301, holding it reversible error to strike out such an amendment. 2. Hopkins v. Cothran, 17 Kan. 173; McCaulla v. Murphy, 86 Ga. 475; Looney v. Looney, 116 Mass. 283, where the whole trial was had as if the amendment was made by leave; Baldwin v. Cullen, 51 Mich. 33, where the objection for want of leave was made on the trial after long delay; Redmond v. Peterson (Cal., 1894), 36 Pac. Rep. 923 ; Keokuk County v. Howard, 43 Iowa 354, where a replica- tion was filed to an unauthorized amendment of an answer. 3. Thomas v. Young, 5 Tex. 253. 4. Moyle v. Landers, 83 Cal. 579. Presumption of Leave. Where the transcript on appeal shows an amend- ment to the petition by interlineation, conforming it to the proof, but fails to show when the same was made, it will be presumed to have been made at the time the testimony was introduced and by leave of the court. Giddings v. Giddings, 57 Iowa 297. See also Stur- devant v. Gains, 5 Ala. 435. Where an amended answer indorsed "filed" by the clerk appears in the judgment roll it must be presumed that it was filed by leave of the court. Livermore v. Webb, 56 Cal. 489. 5. Parrish v. Pensacola, etc., R. Co., 28 Fla. 251; Ten Broeck v. Orchard, 79 N. Car. 518, holding it reversible error to order an answer to be amended without application, on account of in- consistent and contradictory defenses. See also Gillespie v. Wright, 93 Cal. 169; Clark v. Clark, 64 N. Car. 152; Enright v. Seymour (C. PL), 8 N. Y. St. Rep. 356. A plaintiff cannot be compelled to amend after the sustain- ing of a demurrer to his declaration. Rigg -v. Parsons, 29 W. Va. 522. 6. Suggestion Discretionary. In Crimm v. Crawford, 29 Ala. 623, it was held to be proper for the court in charg- ing the jury to suggest at the request of the defendant that the complaint may be amended if the plaintiff desires, so as to obviate the effect of the charge. In Warder v. Nolan (Ind., 1894), 37 N. E. Rep. 821, where the ethics of the question are glanced at, it was held that the plaintiff could not complain because the defendant was permitted to file an additional paragraph to his answer upon the suggestion of the court. In Reck v. Phoenix Ins. Co., 3 Civ. Pro. Rep. (N. Y. Supreme Ct.) 376, it was said that if there is a substantial defect in the complaint which the de- fendant does not call to the attention of the court until after the evidence was closed, and the evidence makes a proper case for recovery, the court should of its own motion order an amendment of the complaint imme- diately. In Rhodes v. Baird, 16 Ohio. St. 580, it was said that the court below " would have been warranted sua sponte in requiring counsel to reform their pleadings so as to make the issues sought to be raised more defi- nite and certain." See also Sutton v. Van Akin, 51 Mich. 463. Stipulation for Amendment. An agreement for an amendment will not 636 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Proposed Amendment. An application for leave to amend should be accompanied by a statement of the amendment which the party proposes to make. 1 A General Application to amend an answer so as to set up fraud, without stating what amendment the defendant wishes to make,, is properly denied. 2 The party should state at least enough to show the materiality of the proposed amendment. 3 Grounds Shown by Affidavit. It is in all cases proper to require from the party asking leave to amend some reasonable excuse for the defect in the pleading which it is sought to correct. 4 The grounds be enforced if it is disputed and not clearly established. Thompson v. Phelan, 22 N. H. 339. In a Divorce Case the court should, of its own motion, suggest an amendment setting up any valid defense of which it has knowledge. Strong v. Strong, 24 How. Pr. (N. Y. Supreme Ct.) 432. 1. Barker v. Walbridge, 14 Minn. 469; Shaw v. Binkard, 10 Ind. 227; Balch -v. Smith, 4 Wash. 497 ; Shaw v. Lawrence, 14 How. Pr. (N. Y. Su- preme Ct.) 94; Cashman v, Anderson, 26 Mo. 67; Robinson v. Lawson, 26 Mo. 69 ; Rainey v. Sanders, 4 Humph. (Tenn.) 447. Indefinite Motions. In Stern v. Knapp, 52 N. Y. Super. Ct. 14, a mo- tion " for an order permitting the plaintiff to amend his complaint here- in," without showing the proposed amendment, was held insufficient. In Noxon v. Glen (Supreme Ct.), 2 N. Y. St. Rep. 661, a motion to amend the complaint " as far as necessary," etc., was denied. A motion by the plaintiff at the close of the testimony " to amend the com- plaint to conform to the evidence so far as to allow the plaintiff every pos- sible advantage under the decisions upon the evidence " was denied be- cause it was too indefinite. Crooks v. Second Ave. R. Co., 66 Hun (N. Y.) 626, 20 N. Y. Supp. 813. Multifarious Motion. Leave will not be granted to serve a proposed " amended and supplemental com- plaint," as a supplemental and amended complaint are distinct plead- ings. Oelberman v. New York, etc., R. Co. (Supreme Ct.), 29 N. Y. Supp. 864. Presumption in Favor of Court. Re- fusal to allow an amendment is pre- sumed to be right unless the char- acter of the proposed amendment is shown in the record. Jessup v. King, 4 Cal. 331; Shaw v. Qinkard, 10 Ind. 227; Perry v. Watts, 67 Ga. 602; Craig v. Blow, 3 Stew. (Ala.) 448. Second Amendment. Where a party has amended his pleadings once and seeks to make a second amendment he must show that the change which he offers to make is substantial. Har- vey v. Spaulding, 7 Iowa 423. 2. Allen v. Ranson, 44 Mo. 263. 3. State v. Homey, 44 Wis. 615. An application not alleging as facts the matter proposed to be pleaded in the amendment is properly denied. Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123. 4. Harrington v. Slade, 22 Barb. (N. Y.) 161; Deline -v. Michigan F. & M. Ins. Co., 70 Mich. 435, a motion toadd a new notice of defense after the open- ing of the trial; Johnson v. Swayze, 35 Neb. 117; Garrison v. Goodale, 23 Oregon 307; Holladay v. Elliott, 3 Oregon 340; Phenix Ins. Co. v. Stocks, 149 111. 319; Foote v. Sprague, 13 Kan. 155; People v. Burton (Colo. App., 1894), 36 Pac. Rep. 299; Martin v. Noble, 29 Ind. 216; Shaw v. Binkard, IO Ind. 227; Taylor v. Blair, 14 Mo. 437; Sweet v. Mitchell, 19 Wis. 529. Second Application. Where a party has obtained leave to amend and failed to avail himself of it, and makes a second application, the court is fully justified in requiring a sufficient show- ing. Butcher v. Brownsville Bank, 2 Kan. 70. Amendment Making New Issues. Leave to amend a pleading for the purpose of raising a new issue will not be granted unless the applicant establishes to the satisfaction of the court that he was not aware of the facts at the time of pleading and ex- cuses laches in his application. Cocks v. Radford, 13 Abb. Pr. (N. Y. Su- preme Ct.) 207. See also Shropshire v. Kennedy, 84 Ind. in; Burr v. Men- denhall, 49 Ind- 496. 637 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. for the motion must ordinarily be shown by affidavit. 1 No Affidavit is Necessary to authorize an amendment where it ap- pears from the case as then before the court that it is material and in furtherance of justice. 2 Renewal of Motion. Where a motion to amend is made while a new trial is pending, an objection that it is a renewal without leave of a motion already denied is not tenable if the motion for- merly made was for leave to amend on the trial after the evidence was closed in order to conform the pleadings to the proof. 3 Prima Facie Case Sufficient. The court will not, as a general rule, undertake to determine upon an application for leave to amend a pleading, whether the proposed amendment sets forth a cause of action or defense which can be finally maintained or established, unless it can be made to appear conclusively that the amendment, if granted, can be of no possible avail to the party asking it. 4 1. Garrison v. Goodale, 23 Oregon 307; Canfield -v. Bates, 13 Cal. 606. See also, as indicating this practice, Koons v. Price, 40 Ind. 164; Carpen- ter v. Knapp (Supreme Ct.), 26 N. Y. Supp. 436; People v. Sackett, 14 Mich. 320; Goddard v. Williamson, 72 Mo. 131. Substance of Affidavit. "Leave to amend ought never to be given unless the motion for it be supported by an affidavit that it will affect the merits of the case and that the change is not desired for any other reason." Hart- man v. Keystone Ins. Co., 21 Pa. St. 475- Affidavit of Party Himself. An amendment of a verified answer which is allowed upon affidavit showing good cause (Colo. Civ. Code, 75) may be refused where there is no affidavit of the defendant himself showing how the misapprehension occurred. Bar- ton v. Laws (Colo. App., 1894), 35 Pac. Rep. 284. In Indiana. A party may have leave to amend his pleading after the jury is sworn but before the cause is sub- mitted, without placing on record the specific grounds on which the motion is based, where the amendment does not change the issues; but where the amendment changes the issues or makes a new issue the amendment must be made upon cause shown. Maxwell v. Day, 45 Ind. 509. See also Kerschbaugher v. Slusser, 12 Ind. 453; Ostrander v. Clark, 8 Ind. 211. 2. Caldwell v. Meshew, 53 Ark. 263, an amendment to conform to the proof. An application to amend a pleading at the trial to obviate an objection for a variance does not require an affi- davit. Murdoch v. Finney, 21 Mo. 138; Wabash Western R. Co. v. Mor- gan, 132 Ind. 430. See also Buddee v. Spangler, 12 Colo. 216. The allowance of a verified amended complaint after defendant has an- swered, which is for substantially the same cause of action though unac- companied by an affidavit of merits, is not an abuse of discretion. Ball v. McGeoch, 78 Wis. 355. See also Sweet v. Mitchell, 19 Wis. 524; Rogers v. Wright, 21 Wis. 681. 3. Ehlein v. Brayton, 66 Hun (N. Y.) 635, 21 N. Y. Supp. 825. 4. Campbell v. Campbell, 23 Abb. N. Cas. (N. Y. Supreme Ct.) 187 ; Mitchell v. Allen, 25 Hun. (N. Y.) 543; Turner v. Dexter, 4 Cow. (N. Y.) 555 ; Miller v. McDonald, 13 Phila. (Pa.) 27. See also State v. Keokuk, 18 Iowa 388 ; Mitchell v. Joyce, 69 Iowa 121 ; Beard v. Young, 2 Overton (Tenn.) 54. Compare Sweet v. Mitch- ell, 19 Wis. 524. General Objection. An objection to a motion for leave to file an amended count to the complaint which states no reason for objection may properly be overruled. Reynolds v. Dismuke, 48 Ala. 209. Counter-affidavits. An affidavit con- tradicting the proposed amendment should not be considered in determin- ing the question of its allowance. Richardson v. Chynoweth, 26 Wis. 656. Hearing on Motion. A motion to amend a plea by filing an affidavit de- nying the execution of written instru- 638 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. d. NOTICE OF MOTION When Required. Notice of motions to amend is usually required in accordance with statutory provisions relating to notice of motions in general. 1 Service of Proposed Amendment. The better and more orderly prac- tice requires that where it is sought to make a substantial amend- ment to the complaint a copy of the proposed amendment should be served with the motion papers. 2 Prayer for General Relief. Where a notice of motion for leave to serve a supplemental answer asks for "such other and further relief " as to the court may seem proper, and the case is one in which a supplemental answer is not allowable, the court may permit an amended answer to be filed. 3 ments described in the declaration is creasing the demand for judgment, properly heard by the circuit court be- fore whom the case has been tried and who has reserved his decision, although at the time of the entry of the motion the county in which the suit was brought has been made a part of another judicial circuit. Ports- mouth Sav. Bank v. Hart, 83 Mich. 646. 1. "In the Absence of Statutory Pro- visions a defendant having been regu- larly brought into court by service of process is in legal contemplation in court until the final disposition of the cause, and is presumed to be cognizant of every step taken in its progress." Haynes v. Rice, 33 Tex. 167; Coor v. Smith, 107 N. Car. 430 ; Yonge v. Broxson, 23 Ala. 684; Smith v. Brit- tenham, 98 111. 188. In Pennsylvania the court said that "no amendment except one merely formal should be allowed without notice to the opposite party." Mer- cur, J., in Tyrrill v. Lamb, 96 Pa. St. 464. In Nevada a complaint cannot be altered in a material part without notice to the defendant. Keller v. Blasdel, 2 Nev. 162. In Kansas it is error for the district court to allow a party to amend his pleadings in a material respect in the absence of and without notice to the adverse party who is in default. St. Work v. Ogden (Supreme Ct.), 16 N. Y. Supp. 368. Allowing an amendment at the com- mencement of the trial increasing the amount claimed in the complaint, without previous notice of motion therefor, was held to be a matter rest- ing in the discretion of the court. Hamilton v. Third Ave. R. Co., 13 Abb. Pr. N. S. (N. Y. Super. Ct.) 318. Waiver of Notice. Notice of amend- ment is waived by an appearance thereto. Kimball v. Bryan, 56 Iowa 632. 2. Shaw v. Bryant, 66 Hun (N. Y.) 627, 20 N. Y. Supp. 785; Parsons v. Copland, 5 Mich. 143. Where the notice of motion for leave to amend the complaint asks only " for an order permitting plaintiff to amend his complaint," and no copy of the proposed amendment is served with the motion papers, the motion should be denied. Stern v. Knapp, 8 Civ. Pro. Rep. (N. Y. Super. Ct.) 54. Where it does not appear from the transcript on appeal that any proposed amendment was served or presented, or that the notice of motion pointed out the precise amendment proposed, the court cannot find an abuse of dis- cretion in refusing to allow the amend- ment. Martin v. Thompson, 62 Cal. 618. Where a petition for the sale of real Louis, etc., R. Co. v. McReynolds, 24 estate of a deceased person is defect- Kan. 368. In New York a defendant who has appeared is entitled to notice of a motion to strike out his name from the summons and complaint. Stephens v. Hall, 25 Abb. N. Cas. (N. Y. Su- preme Ct.) 300. A defendant who has answered, al- though he does not appear, is entitled to notice of a motion to amend by in- ive in omitting a description of all the real estate of which the decedent died seized, it cannot without further no- tice be amended at the hearing so as to validate an order of sale based thereon. Gharky v. Werner, 66 Cal. 388. 3. Myers v. Rosenback (C. PI.), 28 N. Y. Supp. 9, affirmed in 29 N. Y. Supp. 34. 6 39 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. No Notice is Required of merely formal amendments. 1 The Chris- tian name of the plaintiff may be amended without notice, and judgment then taken by default will stand. 2 No notice of a motion to supply lost pleadings is necessary. 3 e. ORDERS GRANTING LEAVE General Leave. In some jurisdic- tions a party may be granted leave to " amend as he may be ad- vised ; " 4 and where a plaintiff has obtained such a general leave to amend he may join other proper parties as defendants without special permission so to do. 5 After a general leave granted to the defendant to amend without qualification when the cause is at issue, the court will not on motion strike out a plea of the statute of limitations filed under the leave. 6 Limiting Time. An order permitting an amendment should limit the time within which it is to be made ; 7 but an omission to do- so is not an error of law. 8 A party having leave to amend must file his amendment within the time prescribed, or not at all unless further leave be given ; 9 but the failure to file it in time may be waived. 10 14. Method of Making Amendments a. ACTUAL AND IMPLIED- AMENDMENTS Actual Amendment. If a party obtains leave to amend he may elect to make the amendment or not, as he pleases ; and if he fails to amend, the issue made by the original pleading should be tried. 11 Permission to amend does not per se amount to an amendment, but the amendment must be actually made either by altering the pleading or by filing or serving a new one. 12 1. Spencer v. McCarty, 46 Tex. 213. (N. Y. Supreme Ct.) 185; Gaylord v. An amendment may be ordered at a Beardsley (Supreme Ct.), 19 N. Y. general term and without formal no- Supp. 548. tice of motion for that purpose when 5. Lowvall v. Gridley, 70 Cal. 507. the object of the amendment is only Contra, Salt Lake County v. Golding, 2 to conform the pleading to the facts Utah 319. proved and when the record furnishes Under "leave to amend the com- the only grounds for and against the plaint herein" the plaintiff may change same. Clark v. Dales, 20 Barb. (N. the existing paragraphs and add new Y.) 42. ones. State v. Wright, 80 Ind. 425. 2. Sidway v. Marshall, 83 111. 438. 6. Burton v. Rodney, I Houst. 3. Benedict v. Cozzens, 4 Cal. 381. (Del.) 442. 4. Wallace v. Columbia, etc., R. Co., 7. Moore v. Christian, 31 S. Car. 37 S. Car. 335. Compare Thompson v. 337. Malone, 13 Rich. (S. Car.) 252. 8. Moore v. Christian, 31 S. Car. An order at the trial permitting an 338. amendment to the complaint in cer- 9. Haight v. Schuck, 6 Kan. 192. tain particulars, "and otherwise as he 10. Smith v. Groverman, 9 Ind. 304; may be advised to be material in his Brinkley v. Duncan, 10 Ark. 252, cause of action stated in said com- where the opposite party appeared plaint," is not objectionable, as the after the amendment and consented to words italicized limit the amendment a continuance, and entered into an so as not to substantially change the agreement of record recognizing the claim. Moore v. Christian, 31 S. Car. amended pleading. 337. 11. Foxz/. Cosby, 2 Call (Va.)i; East In New York an order granting leave St. Louis v. Board, etc., 6 111. App. to a party to amend his pleadings as 130; Collier v. Wheldon, i Mo. i. he may be advised cannot be sus- 12. Lohrfink ;;. Stll, 10 Md. 530, tained. New v. Aland, 62 How. Pr. where it was held reversible error for 640 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Implied Amendment. But where there is an order granting leave to amend, and the subsequent proceedings in the cause are based upon the assumption that the amendment has been made, the course is to consider the order as standing for the amendment itself. 1 Where a motion to amend has been granted, but no amended pleading appears in the judgment roll, it may be treated on appeal as if actually made. 2 Order Operating as an Amendment. Under an order allowing an amendment, when the record furnishes the means of applying the court to treat the leave to amend as an actual amendment. Kimball v. Gearhart, 12 Cal. 46; Briggs v. Bruce, 9 Colo. 282. See also Malone v. Hund- ley, 52 Ala. 147. Entry of Becord. Whatever amend- ments are made to the pleadings ought to be entered of record so as to pre- vent inconvenience on appeal. Shearin v. Neville, i Dev. & B. (N. Car.) 3. See also Eshleman v. Snyder, 82 Ind. 498. If leave to amend the complaint is improperly granted, but the record does not show that the amendment was in fact made, the error is without injury. Golden v. Conner, 89 Ala. 598; Rooker v. Wise, 14 Ind. 276. Keith v. Cliatt, 59 Ala. 408, holds that in the absence of anything in the record to show that an amendment was made it cannot be presumed to have been made from the mere fact that leave was given to amend. Compare Seitz v. Buffum, 14 Pa. St. 71, where the court said that " it is a principle of law well settled that when leave is given to amend the court con- siders the amendment as made." See also Eyster v. Rineman, n Pa. St. 147. Refiling Discarded Pleading. A com- plaint to which a demurrer has been sustained cannot be treated as an amended complaint by simply filing exhibits at the commencement of the next term without also refiling such complaint with the exhibits. Heizer v. Kelly, 73 Ind. 582. Notice of Amendment Not Sufficient. Service upon defendant of a proposed amendment to the complaint with a notice that the original has been so amended is not sufficient unless the amendment has also been put on file or has been inserted by leave of the court in the original complaint on file. Flanders v. Wood, 24 Wis. 572. Actual Amendment When Dispensed With. In Hoes v. Van Alstyne, 20 111. 201, the court said that it is not the practice in Illinois, when the repre- sentatives of a deceased party are made parties, to amend the declaration by the insertion of their names. Stipulation for Amendment. Where it is agreed in the trial court that a com- plaint may be amended so as to supply necessary averments, but it is not done, the appellate court will allow the amendment to be filed in that court. Hines v. Wilmington, etc., R. Co., 95 N. Car. 434. 1. Holland v. Crow, 12 Ired. (N. Car.) 275; Ufford v. Lucas, 2 Hawks (N. Car.) 214; Excelsior Mfg. Co. v. Boyle, 46 Kan. 202; Lindsborg v. Hageman, 31 Kan. 599; Eaton v. Case, 17 R. I. 429; Brantz v. Marcus, 73 Iowa 64; Hellyer v. Bowser, 76 Ind. 35; Lyon v. Brown, 6 Baxt. (Tenn.)64. Where an amendment is not for- mally filed, but is taken down by the re- porter, treated at the trial as made, and incorporated into the record on appeal by bill of exceptions, it may be deemed an effectual amendment so as to support the verdict and judgment. Kretser v. Gary, 52 Wis. 374. That the omission to make a formal amendment may be supplied by the record of the subsequent proceedings, see Moore v. Lewis, 76 Mich. 300. Objection on Appeal. Where a plain- tiff has leave to amend and proceeds without actually amending his decla- ration, and there is no objection at the time, the objection cannot be raised in the appellate court. Hawkes v. Daven- port, 5 Allen (Mass.) 390; Home v. Meakin, 115 Mass. 326; Kuhn v. Gus- tafson, 73 Iowa 633. 2. Maders v. Whallon (Supreme Ct.), 26 N. Y. Supp. 614. See also Kennedy v. Dear, 4 Port. (Ala.) 423. On appeal if the record shows that the amendment was allowed and made it is immaterial that the original plead- ing as it appears in the record was no* alter-, d Fulkerson v. State, 14 Mo 49- I Encyc. PI. & Pr. 41. 641 Of Pleadings, etc., at AMENDMENTS. Common Law, under Cedes, etc. the order so as to show the precise effect of the amendment desired, it may be considered as made, although the verbal changes are not actually made in the original pleading. 1 b. BY INTERLINEATION. Slight alterations may be made by interlineation in the original pleading, unless that method is pro- hibited by statute or rule of court. 2 An amendment to obviate a mere technical objection to the complaint may be made by interlining, notwithstanding it has been verified. 3 Where after the filing of a complaint the same was amended by writing the amendment below the signature of counsel to the original complaint, and the complaint was then resubscribed under the amendment, the proceeding was not objectionable. 4 Discretionary. It has been held that error cannot be predicated 1. Ballou v. Hill, 23 Mich. 60. Order to Strike Out Parties. Where the plaintiff obtains leave to strike out one of the defendants, the order will operate to effect the amendment, and an actual amendment is not necessary. Palmer v. Lesne, 3 Ala. 741. See also Hawkes v. Davenport, 5 Allen (Mass.) 390, where such leave was granted and an actual amendment held to have been waived by proceed- ing without objection. Sufficiency of Kecord on Appeal. If the record affirms that an amend- ment was made, and fully states the matter therein, it is sufficiently be- fore the appellate court, although not copied into the transcript. Booth v. Hubbard, 8 Ohio St. 248. By Interlineation. Where leave to amend by interlineation is granted by the trial court, the appellate court will regard the amendment as made, al- tluiugh the changes were not actually made. Underwood v. Bishop, 67 Mo. 374- 2. Fitzpatrick v. Gebhart, 7 Kan. 35; Hyerz'. Vaughn, iSFla. 647, where the partnership name of the defend- ants was inserted by interlining. That a noncompliance with rules of court in respect of the form of amended pleadings is not a ground of demurrer, see Lewis v. Alexander, 51 Tex. 578. In Iowa amendments b}' interlinea- tion are prohibited by the Code, 2692, and on application a sworn answer by striking out a word therein was re- fused. Simmons v. Rust, 39 Iowa 241. In Texas the rules of practice do not apply to cases on appeal from justice courts, and in these cases amendments may be made without rewriting the original. Missouri Pac. R. Co. v. Ivy, 79 Tex. 444. Toleration of the Practice. The practice of mutilating pleadings by striking out or inserting new mat- ter by way of amendment was disap- proved in Hill v. Road Dist. No. 6, 10 Ohio St. 621, and Schneider v. Hosier, 23 Ohio St. 98, the latter case holding, however, that if the amendment is so made with the permission of the court and no prejudice results to the adverse party, the final judgment will not be reversed therefor. Amendment? by interlineation are distinctly sanctioned in Maryland. Scarlett v. Academy of Music, 43 Md. 208; Lohrfink v. State, 10 Md. 535. It was said in Garrity v. Wilcox, 83 111. 159, that the remark made in Stan- berry v. Moore, 56 111. 472, condemn- ing amendments by erasure and inter- lineation w?s simply intended to indicate a better practice, and was not meant to be prohibitive. An amendment of a complaint by striking out of the caption the name of certain defendants who were not proper parties, without filing an amended complaint, while not com- mendable as a method of amending, is without prejudice to other defend- ants who are proper parties. Doane v. Houghton, 75 Cal. 360. In Maddox v. Thorn, 60 Fed. Rep. 217, where the plaintiff had leave to amend by alleging diversity of citizen- ship of the parties, the court ordered that it be made without rewriting the pleading. 3. Meshke v. Van Doren, 16 Wis. 4. Nicodemus v. Simons, 121 Ind. 564- 642 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc of an exercise of a discretionary power to allow amendments to be made by way of interlineation ; l and clearly, if a party desires to question the propriety or legality of an amendment by the adverse party because it was made by interlineation, he should move to strike the amended pleading from the files and save the point in a bill of exceptions. 2 Not a Ground of Demurrer. Making an amendment by interlineation instead of rewriting the original pleading, where the latter method would be preferable, is not a ground of demurrer. 3 c. BY A SEPARATE PLEADING. Where the whole structure of a pleading is to be changed by amendment it is usually re- written ;* but where the amendment is not so radical it may be proper to file a statement of the amendment and designate by reference where the new matter is to be inserted or what is to be considered as stricken out. 5 By Reference. A pleader may by reference to one count in a complaint adopt a certain specified portion of another and add to it averments so as to constitute another and separate count ; but this method would be objectionable after a demurrer has been sustained to the count to which reference is made. 6 d. FORM OF AMENDED PLEADING "^enue. Where a suit is in- stituted in one county and removed to another, and the declara- tion is amended, the venue should be laid as of the county in which the suit was instituted. 7 Averments. An amended petition should state the date of the original petition, but the omission may be cured by a statement of it in the answer to the amendment. 8 An amended petition 1. South Joplin Land Co. v. Case, 5. Hill v. Road Dist. No. 6, 10 Ohio 104 Mo. 572. See also Schneider v. St. 621; Eigenman v. Rockport, etc., Hosier, 23 Ohio St. 98; Simpson v. Assoc., 79 Ind. 41. Greeley, 8 Kan. 586. A party amending a pleading should 2. Teutonia L. Ins. Co. v. Mueller, indicate the precise part which is 77 111. 22. See Gilmore v. Nowland, 26 amended and not leave to the court to 111. 200. decide where the amendment should 3. Payne v. Crawford (Ala., 1892), be inserted; otherwise it may be dis- 10 So. Rep. 911. regarded. Bourland v. Sickles, 26 111. 4. Eigenman v. Rockport, etc., 497; Ransome v. Bearden, 50 Tex. 119, Assoc., 79 Ind. 41; Hill v. Road Dist. where the new averments contra- No. 6, 10 Ohio St. 621. dieted averments in the original plead- It is the better practice when a com- ing without showing the exact extent plaint is amended to set out in full the of the amendment, complaint or count as amended unless 6. Birmingham R., etc., Co. z>.Allen the amendment is of such a character 99 Ala. 359. Compare Mahaska County that it may be readily made by inter- Sav. Bank v. Crist (Iowa, 1893), 54 N. lineation. Birmingham R., etc., Co. W. Rep. 450, where it was held that v. Allen, 99 Ala. 359. an amendment to a pleading may by In Missouri the Code provides that reference to the original pleading every answer amendatory or supple- adopt its allegations, although the mental must be entire and separate; original pleading was stricken from the and the courts will not permit parties files before the amendment was filed, to dispense by agreement with that 7. Calvert County v. Gibson, 36 Md. provision, as by agreeing that the 229. original and amended answers shall 8. Walter A. Wood Mowing, etc., be considered as one. Basye v. Am- Mach. Co. v. Hancock, 4 Tex. Civ. brose, 28 Mo. 39. App. 302. 643 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. must set out all the facts necessary to constitute a cause of action. 1 Where an amended declaration in an action by an ad- ministrator is only an additional count, a repetition of the pro- fert of plaintiff's letters of administration is unnecessary.* Signature. An amended petition to county commissioners may be signed by the petitioners' attorney, although the petitioners signed their own names to the original petition. 3 Where an amended complaint was not signed by the party or his attorney, it was held that as the defect was amendable in the trial court, it would be regarded as amended on appeal unless the objection was presented to the court below by a motion to strike it from the files. 4 An amended answer is properly disregarded where it is not subscribed by the attorney serving it. 5 Verification. Where the statute requires a complaint to be veri- fied, an amendment thereto should also be verified ; 6 and, follow- ing the practice in chancery, it has been held that where a sworn answer is amended, the original should remain on file and not be altered, and the amendment should be made by verifying and filing an entire new amended answer. 7 Failure to Comply with Rule of Court. In Lewis v. Alexander, 51 Tex. 578, it was held that a failure to comply with a rule of court requiring that an amended pleading shall give the dates and descriptions of the abandoned pleadings would not be sufficient of it- self to sustain a general judgment upon general and special demurrers to the amended pleading. 1. Hagood v. Hutton, 33 Mo. 244. 2. McMillan Marble Co. v. Black, 89 Tenn. 118. 3. New Marlborough v. Berkshire County, 9 Met. (Mass.) 423. 4. Lowry v. Button, 28 Ind. 473. Ommission of Signature Not Fatal. The omission of the signature of the plaintiff's attorney to an amended dec- laration, where his name appears in the record and defendant pleads to the amendment, is no ground for arrest- ing or reversing the judgment. Hu- ling v. Florida Sav. Bank, 19 Fla. 695. In Stewart v. Sonneborn, 49 Ala. 178, it was held that when an amend- ment of the complaint is allowed by the court, it is not necessary that it should be marked " filed " by the clerk nor that it should be signed by counsel. 5. Duval v. Busch, 13 Civ. Pro. Rep. (N. Y. City Ct.) 366. 6. Where a petition for divorce is amended the facts averred by the amendment must be sworn to as the statute requires or they will not be regarded. Foy v. Foy, 13 Ird. (N. Car.) 90. Compare Hamill v. Phenicie, 9 Iowa 525, where it was held that an amend- ment to a sworn petition for an attach- ment need not be verified where it does not change the cause of action or the cause for an attachment, as alleged in the original petition; and Matthews v. Roundtree, 20 Mo. 282, where the appellate court refused to reverse a judgment because the plaintiff did not swear anew to his petition after an amendment in the caption. In Illinois it was held that a petition under the Burnt Records Act, if amended in a material respect, should be sworn to; but if the amendment was merely formal it was not neces- sary. McCabe v. Porter, 73 111. 244. An amended complaint, where the original complaint and the answer thereto are verified, is not a " subse- quent pleading " within 523 of the New York Code, which, with certain exceptions, requires verificaticn of each pleading subsequent to a verified pleading. Duval v. Busch, 13 Civ. Pro. Rep. (N. Y. City Ct.) 366. 7. Strong v. Dwight, n Abb. Pr. N. S. (N. Y. Supreme Ct.) 319, so that the plaintiff might use the existing original answer as evidence on the trial to prove the defendant's admis- sion, which he had leave to strike out. 644 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. 15. Service of Amended Pleadings. An order granting leave to amend a complaint need not be served on the defendant unless it so directs, where the statute does not require it. 1 But in many of the states service of amended pleadings is required by statute. 2 An amended petition claiming a larger amount than in the original should be served upon the defendant ; 3 and judgment by default for the increased demand without such service is errone- ous. 4 A mere formal amendment does not require service of the amended petition. 5 New York. Under the provisions of the New York Code an amended plead- ing is to be served on the attorney of a party if he has one, and if not, on the party personally. Mercier v. Pearl- stone, 7 Abb. Pr. (N. Y. Super. Ct.) 325- As to what constitutes an office let- ter-box of an attorney within the meaning of 979 of the New York Code relating to service of pleadings, see Duval v. Busch, 13 Civ. Pro. Rep. (N. Y. City Ct.)s66. Ohio. When a bill for divorce is amended there must be service of the amendment. Smith v. Smith, Wright (Ohio) 643. Iowa. Notice of an amendment filed in vacation must be given to the oppo- site party. Allen v. Bidwell, 35 Iowa 86. 3. Clark -v. Holbrook, 14 La. Ann. 581, holding that it will be considered as abandoned if not served. Hittson v. Gentry, 2 Tex. Civ. App. 670; Meyer v. North River Const. Co., 53 N. Y. Super. Ct. 387; Schuttler v. King, 12 Mont. 149. See also Leaven- worth, etc., R. Co. v. Van Riper, 19 Kan. 317. 4. Hittson v. Gentry, 2 Tex. Civ. App. 670. 5. Chaffe v. Thornton, 28 La. Ann. 837; Barber v. Briscoe, 8 Mont. 214; King v. Goodson, 42 Tex. 8r. Immaterial Amendment. Where an amendment is immaterial, and gives to the plaintiff no more or greater rights than he would have without the amendment, the judgment will not be affected for want of service of the amendment. Alvey v. Wilson, 9 Kan. 401. A Rule of Court, requiring service of a copy of an amended declaration, will not be construed to require such ser- vice where the amendment is slight and cannot affect the merits of the 1. Holmes v. Campbell, 12 Minn. 221; Sidway -v. Marshall, 83 111. 438; Ward v. Lathrop, n Tex. 287; Free- land v. Lanfea:-, 2 Martin N. S. (La.) 257; Barrow v. Wright, 3 La. Ann. 130. In Kansas, under 136 of the Civil Code, a plaintiff who is compelled to file an amended petition by an order of court, such petition being challenged by a motion directed against it, is not required to serve a copy of theamended petition on the defendant. Cross v. Stevens, 45 Kan. 443. 2. That material amendments must be served, see Allaben v. Wakeman, 10 Abb. Pr. (N. Y. Supreme Ct.) 162; McMurray v. McMurray, 60 Barb. (N. Y.) 117; People v. Woods, 2 Sandf. (N. Y.) 652; Alvey v. Wilson, 9 Kan. 401; Leavenworth, etc., R. Co. v. Van Riper, 19 Kan. 817; Reinhart v. Lugo, 86 Cal. 395; Thompson v. Johnson, 60 Cal. 292; Ball v. Danforth, 63 N. H. 420; Cleveland v. Cohrs, 13 S. Car. 402; Tyrrill v. Lamb, 96 Pa. St. 464; Schuttler v. King, 12 Mont. 149; Bar- ber v. Briscoe, 8 Mont. 214. See also Phillips v. Atlanta (Ga., 1887), 4 S. E. Rep. 256. Kansas. Notice of the filing of an amendment to the complaint must be given to the defendant unless such notice is waived. Haight v. Schuck, 6 Kan. 192. The rule applies where the original service was by publication. Wood v. Nicolson, 43 Kan. 461. California. An amended complaint must be served on all the adverse par- ties who are to be bound by the judg- ment whether it materially affects them or not. Elder v. Spinks, 53 Cal. 293. A defendant who appears and an- swers an amended complaint cannot object on appeal that the complaint as amended was not served on the other defendants. McGary v. Pedrorena, 58 Cal. 91. 645 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. An amendment of the complaint relating only to the parties to the action and not to the subject of litigation need not be served upon parties appearing, but in default. 1 Where a pleading is amended at the trial it need not be served, unless the service is a condition of allowing the amendment. 8 16. Terms a. POWER TO IMPOSE OR DISPENSE WITH. Unless the court is restrained by statute or rules of court, 3 it has power when granting leave to amend to impose proper terms upon the applicant, for the purpose of preventing prejudice to the opposite party, or to compensate him for injury or delay caused by the amendment, 4 or to discourage an obnoxious practice ; 5 and the power to grant amendments upon terms, where such terms are left to the discretion of the court, includes the power to allow an amendment without terms. 6 Where amendments are to be case. Spofford v. Ritten, 4 McLean (U. S.) 253- 1. Weil v. Martin, 24 Hun (N. Y.) 645. California. Striking from the title of the action the names of one or more defendants without changing the issues is not an amendment which needs to be served. Harney v. Cor- coran, 60 Cal. 314. So where one party is substituted for another by order of the court. Kittle v. Bellegarde, 86 Cal. 556.. Where a complaint is amended under Cal. Code Civ. Pro. 474, by inserting the true name of a defend- ant sued by a fictitious name, service of a copy of the amended complaint on such defendant is not required. Brock v. Martinovich, 55 Cal. 516. In an action for partition the bring- ing in of new parties, alleging that they have or claim an interest in the subject-matter, is an amendment of substance which must be served. Reinhart v. Lugo, 86 Cal. 395. Texas. Adding the name of one of the members of a partnership in a suit by the partnership does not require service, Roberson v. Mcllhenny, 59 Tex. 615; nor an amendment changing the Christian name of the plaintiff, W T illiams v. Huling, 43 Tex. 113. An amendment introducing a new- cause must be served, McRee v. Brown, 45 Tex. 503 ; Hewitt v. Thomas, 46 Tex. 232, 37 Tex. 520; King v. Goodson, 42 Tex. 152 ; McNeil v. Childress, 34 Tex. 370; Erskine v. Wilson, 27 Tex. 117; unless the de- fendant has appeared and answered, Erskine v. Wilson, 27 Tex. 117 ; Weatherford v. Van Alstyne, 22 Tex. 22. Omission may be waived by failing to make proper objection. Carter v. Eames, 44 Tex. 544. Amendment not introducing a new cause of action need not be served. Perkins -v. Wood, 63 Tex. 396. 2. Lane v. Hayward, 28 Hun (N. Y.) 583. 3. See supra. III, 13, a., in respect of Amendments of Course. \Vhere plaintiff amends of course within the time prescribed he cannot be compelled to pay the costs of a mo- tion previously served on him to strike out irrelevant allegations, although in his amendment he complies with the requirements of the defendant's mo- tion. Welch v. Preston, 58 How. Pr. (N. Y. Supreme Ct.) 52. But see Will- iams v. Wilkinson, 5 How. Pr. (N. Y. Supreme Ct.) 357. 4. Harkins v. Edwards, I Iowa 296; Burns v. Scooffy, 98 Cal. 271 ; Gilchrist v. Gilchrist, 44 How. Pr. (N. Y. Su- preme Ct.) 317. Election of Party. Where the court grants leave to amend upon payment of costs the party asking leave may elect not to accept the privilege. Smith v. Powers, 15 N. H. 546. Effect of Payment. Costs ordered to be paid by a party on obtaining leave to amend should not afterwards be taxed and included in the final judg- ment. Kellogg v. Graham, Wright (Ohio) 87. 5. McQuestion v. Young, 21 N.H. 462. 6. Maine. Bolster v. China, 67 Me. 551; Ham -v. Ham, 37 Me. 261. Wisconsin. Moll v. Semler, 28 Wis. 589; Wells v. American Express Co., 49 Wis. 224. California. Tormey v. Pierce, 40 Cal. 306. 646 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. allowed " on such terms as may be just," the court may allow an amendment of the complaint after demurrer without costs. 1 But where an amendment is allowed upon the motion of one party it is error to adjudge the costs of the motion against the other party. 8 b. DISCRETIONARY REVIEW FOR ABUSE. The imposition of terms upon granting leave to amend is a matter resting in the discretion of the trial court, the exercise of which is not a subject of review by an appellate tribunal, except in a clear case of abuse, 3 or where a positive statutory provision or rule of court has been violated. 4 Colorado. Cooper v. McKeen, n Colo. 41. South Carolina. Green v. Iredell, 31 S. Car. 588; Wallace v. Columbia, etc., R. Co., 37 S. Car. 335; Stallings v. Barrett, 26 S. Car. 474. Iowa. Harrison v. Colton, 31 Iowa 16; Thomson v. Wilson, 26 Iowa 120. New York. Cayuga County Bank v. Warden, 6 N. Y. 19; Hagins v. De Hart, 12 How. Pr. (N. Y. Supreme Ct.) 322; Miller v. Garling, 12 How. Pr. (N. Y. Supreme Ct.) 203. Delaware. Doe v. Prettyman, I Houst. (Del.) 334. Massachusetts. Harrington v. Har- rington, 107 Mass. 329; Hartwell v. Hemmenway, 7 Pick. (Mass.) 117; Munroe v. Cooper, 5 Pick. (Mass.) 412. See also Beneway v. Thorp, 77 Mich. 181. 1. Stallings v. Barrett. 26 S. Car. 474- 2. Mohr v. Sherman, 25 Ark. 7. 3. California. Clune v. Sullivan, 56 Cal. 249; Culverhouse v. Crosan, 94 Cal. 544. Michigan. Borden v. Clark, 26 Mich. 410. Colorado. Miller v. Thorpe (Colo. App., 1894), 36 Pac. Rep. 891; Cole- man v. Davis, 13 Colo. 98. New York. Felix v. Van Slooten (City Ct.), 46 N. Y. St. Rep. 791; Schermerhorn v. Wood, 30 How. Pr. (N. Y. C. PI.) 316; Minton v. Home Ben. Soc. (Supreme Ct.), 16 N. Y. St. Rep. 1001; Smith v. Rathbun, 75 N. Y. 122; Van Ness v. Bush, 22 How. Pr. (N. Y. Supreme Ct.) 481 ; Bausch v. Ingersoll, 61 Hun (N. Y.)627, 16 N. Y. Supp. 336. South Carolina. Green v. Iredell, 31 S. Car. 588; Stallings v. Barrett, 26 S. Car. 474. Wisconsin. Smith v. Dragert, 65 Wis. 507 ; Mcllquham v. Barber, 83 Wis. 500; Jones, v. Walker, 22 Wis. 220; McHenry v. Grant, 84 Wis. 311. North Carolina. Robinson v. Will- oughby, 67 N. Car. 84; Clements v. Van Norden,4Dev. & B. (N. Car.) 235; Hinton v. Deans, 75 N. Car. 18. Minnesota. Caldwell v. Brugger- man, 8 Minn. 286. Georgia. Renew v. Redding, 56 Ga. 311- Texas. Turner v. Lambeth, 2 Tex. 365- Illinois. Heslep v. Peters, 4 111. 45; Jackson v. Warren, 32 111. 331. Kansas. First Nat. Bank v. Tappan, 6 Kan. 456; Wands v. School Dist., 19 Kan. 204. Indiana. Burk v. Andis, 98 Ind. 59. Iowa. Harrison v. Colton, 31 Iowa 16. See, further, as to abuse of dis- cretion, supra, III, 4, a. Order Affecting Substantial Bight. It was held, in Cramer v. Lovejoy, 41 Hun (N. Y.) 581, that a question of terms decided in a county court, if it affects a substantial right, is review- able on appeal by the general term ; and a decision was reversed for improvi- dently allowing an amendment with- out terms. See also Marsh v. McNair, 40 Hun (N. Y.) 216. No Prejudice. The taxing of ac- crued costs to the plaintiff upon allow- ing an amendment of his petition could not have prejudiced him where he failed upon the trial and thus be- came liable for all the costs. Keller v. Bare, 62 Iowa 468. 4. New Hampshire. It was held, in Gale v. French, 16 N. H. 95, upon a con- struction of the New Hampshire stat- ute that the court could not impose terms for an amendment in matters of form. In Massachusetts it seems that rule 15 of the Superior Court, which 647 Of Pleadings, etc. , at AMENDMENTS. Common Law, under Codes, etc. Objections to Bulings relating to terms of amendment should be made in the trial court in order to be available on appeal. 1 Effect of Accepting Terms. A party cannot accept, so far as it is for his benefit, a conditional order granting him leave to amend and then question the validity of the order ;' 2 and where a party accepts the terms imposed upon him the appellate court will not modify those terms, although it should appear that the amend- ment was unnecessary. 3 c. PROPER TERMS Customary to Exact Terms. It is the ordinary course of the court, in granting leave to amend, to impose terms of some kind upon the party at whose instance the amendment is made. 4 And where an amendment is allowed before trial, it is customary to exact from the party applying requires payment of costs upon amendments of substance, does not apply to a plea puis darrein continu- ance. Burton v. Frye, 139 Mass. 131; Goodrich v. Bodurtha, 6 Gray (Mass.) 323. See further, in regard to the same rule, Webber v. Davis, 5 Allen (Mass.) 393. See State v. Moses, 20 S. Car. 465, where it was said that leave to amend an answer by pleading matter puis darrein continuance should always be upon payment of costs. In Maine it is error to permit an amendment of a declaration held in- sufficient on demurer except on pay- ment of costs from the time when the demurrer was filed, the statute being imperative. Colton v. Stanwood, 67 Me. 25. Fiedler z/. Carpenter, 2 Woodb. & M. (U. S.) 211, was decided under a similar rule. And an amendment to a declaration cannot be allowed except upon pay- ment of costs when exceptions have been taken to the overruling of a gen- eral demurrer, until the exceptions have been passed upon by the law court. Shorey v. Chandler, 80 Me. 409. 1. Teberg v. Swenson, 32 Kan. 224; Griggs v. Howe, 31 Barb. (N. Y.) too. See also Tupper z>. Kilduff, 26 Mich. 394- If a party wishes to except to the allowance of an amendment without terms he should show to the trial court that he is prejudiced thereby. Ruege v. Gates, 71 Wis. 634. Noncompliance with Terms. When leave to amend is conditional, the terms must be complied with before the party can proceed. Smith v. Johnson, 4 Harr. (Del.) 541. But see McCabe v. Gentes, 18 La. 31, where it was held that costs awarded on leave to amend are not required to be paid up before the suit proceeds, as in case of nonsuit or discontinuance. Objection for noncompliance with terms required should be made in the trial court and not for the first time on appeal. Woods v. Durrett, 28 Tex. 429 ; Washington County Mut. Ins. Co. v. Dawes, 6 Gray (Mass.) 376. If a case is submitted to the jury without objection because terms im- posed upon plaintiff for amending have not been complied with, it is too late for defendant to object after ver- dict in plaintiff's favor, especially if the court orders judgment not to be entered until the terms are complied with. Cannon v. Leonard, 10 Allen (Mass.) 247. Waiver of Exceptions. An exception to the allowance of an amendment to a complaint without terms is waived by asking a continuance as a condi- tion thereof. Ruege v. Gates, 71 Wis. 634, where it was so held, although the request for a continuance was subsequently withdrawn. After a party has answered an amendment it is too late for him to object that terms should have been imposed on the party amending. Dai- ley -v. Wynn, 33 Tex. 614. 2. Smith v. Rathbun, 75 N. Y. 122; Austin v. Wauful (Supreme Ct.), 36 N. Y. St. Rep. 779. 3. Simpson v. Norton, 45 Me. 281. 4. Heslep v. Peters, 4 111. 45; Hunt- ington v. Sheldon, 3 Day (Conn.) 497; Baxter v. Baxter, 3 Jones (N. Car.) 305- If the amendment is material and calculated to surprise the other party, a continuance is granted if demanded. Jackson v. Warren, 32 111. 331; Atkin- son v. State Bank, 5 Blackf. (Ind.) 84. 648 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. the payment of the costs of the motion, 1 and such other costs and expenses, if any, as the opposite party will lose by reason of the desired amendment. 2 There is No Precise Kuie governing the discretion of the court, ex- cept that it must be a judicial discretion, 3 and not be exercised arbitrarily. 4 The terms must not be so onerous as to amount to a deprivation of the right to amend ; 5 nor can they be inflicted 1. Saltus v. Bayard, 12 Wend. (N. Y.) 228. When Dispensed With. A motion to amend is sometimes denied without costs where the practice was unsettled, or the question raised was new and not free from difficulty. Daguerre v. Orser, 3 Abb. Pr. (N. Y. C. PI.) 89; Boington v. Lapham, 14 How. Pr. (N. Y. Supreme Ct.)36o; Field v. Morse, 8 How. Pr. (N. Y. Supreme Ct.)47- See also Barstow v. Randall, 5 Hill (N. Y.) 559; Williamson v. Updike, 14 N. J. L. 270. Tender before Application. Where a reasonable offer to pay costs is made before application for an amendment which the opposite party declines to accept, be will not be entitled to the costs of resisting the motion. Bell v. Judson, 2 How. Pr. (N. Y.) 42. 2. Gilchrist v. Gilchrist, 44 How. Pr. (N. Y. Supreme Ct.) 317; Burns v. Scooffy, 98 Cal. 271; Turner v. Hiller- line, 14 How. Pr. (N. Y. Supreme Ct.) 231; Culverhouse v. Crosan, 94 Cal. 544- Taxable Costs up to Amendment. "The general rule in ordinary cases is conceded to be that the party amending his pleading will be re- quired to pay all taxable costs up to the time of amending, and also costs for opposing the motion." Smith v. Dragert, 65 Wis. 507. See also Wolht- man v. Goft, 15 Civ. Pro. Rep. (N. Y. Supreme Ct.) 39; Mitreaud v. Delas- size, 13 La. 416; Street v. Bushnell, 24 Mo. 328. Costs of New Plea. The plaintiff was allowed to amend after the case was noticed for trial on payment of the costs of a new plea, should the same be required, and also on payment of the costs of the motion. George v. Orcutt, 19 Wend. (N. Y.) 648. A similar amendment was allowed on paying the costs of the motion. Jackson v. Tuttle, 6 Cow. (N. Y.) 590. Production of Witness Kequired. In Knauth v. Heller, 68 Hun (N. Y.) 570, 23 N. Y. Supp. 106, a motion to amend an answer under special circumstances was allowed on condition that the de- fendant produce his agent for examina- tion and pay the costs of the motion. Restriction of Claim. In Freeman v. Fogg, 82 Me. 408, an amendment of the complaint by adding a special count was allowed upon condition that a sum greater than that origi- nally claimed should not be recovered. Striking Out Defendant. Where one who had been improperly made a de- fendant in an action of covenant died pending the action, the court refused to strike out his name except upon payment of costs. Parsons v. Plaisted, 13 Mass. 189. After Argument of Demurrer. In Walker v. Maxwell, i Mass. 104, the defendant had leave to amend his plea after argument of a demurrer upon payment of costs. 3. The terms should be such as the circumstances may require. Click v. Hartman, 10 Iowa 410; Grafton Bank v. White, 17 N. H. 389; Beneway v. Thorp, 77 Mich. 181; Caldwell v. Bruggerman, 8 Minn. 286. 4. People v. Judges (Mich., 1888), 38 N. W. Rep. 322; Tate v. Hamilton, 81 Mich. 221. See also Ser v. Bobst, 9 Mo. 29. 5. Misch v. McAlpine, 78 111. 507, where it was held reversible error to require as a condition of an amend- ment by defendant that he refrain from asking a continuance when it appeared that he could not submit to such terms without abandoning his defense. "Just and Reasonable." The terms "just and reasonable," as employed by the legislature in authorizing the imposition of costs, have reference to the rules of practice existing at com- mon law, and contemplate no other or different terms than would be just and reasonable, as adjudged by that prac- tice. Empire F. Ins. Co. v. Real Estate Trust Co., I 111. App. 391, where it was held reversible error to require, as a condition to the amendment of a 649 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. by way of punishment. 1 Where Prejudice or Surprise would be wor.ked by an amendment, strong terms should be fixed even to requiring payment of full costs up to the time of amendment. 3 plea after demurrer sustained thereto, that the defendant make a sufficient showing by affidavit of merits. 1. In Peoples. Judges (Mich., 1888), 38 N. W. Rep. 322, mandamus issued to compel the judge to annul an order made by his predecessor which per- mitted the defendant to amend the no- tice attached to his plea in an action for libel, but required him to pay $1000, and also allowed the plaintiff to increase the ad damnum, and the court was ordered to hear the application upon its merits. 2. Harkins v. Edwards, I Iowa 296. Notice of Amendment. The court may require notice to be given to the party to be affected by the amend- ment. Sidway v. Marshall, 83 111. 433. Where Opposite Party Misled. If the defendant makes it appear that he is surprised or misled, an amendment will be allowed at the trial only upon terms usually that the trial be post- poned and the party asking the favor pay the costs. Wilde v. Hexter, 50 Barb. (N. Y.) 448; McHenry v. Grant, 84 Wis. 311. Reducing the Ad Damnum. Where an amendment reducing the ad damnum was allowed, it was deemed to be rea- sonable to require the plaintiff to pay costs to the time of the amendment, be- cause if the amount had been so stated originally, the defendant could have paid it and thus escape the sub- sequent costs. Pierce v. Strickland, 2 Story (U. S.)2Q2. Increasing the Ad Damnum. Amend- ment increasing the ad damnum after issue joined, should be allowed only upon payment of costs accruing after issue joined. Gaff v. Hutchinson, 38 Ind. 341. Upon a new trial after reversal, the plaintiff was allowed to amend by in- creasing the amount demanded upon payment of $300 and stipulating to waive costs of all former trials and appeals. Brady v. Cassidy (C. PI.), 37 N. Y. St. Rep. 501. Costs to Time of Amendment. In Gulp v. Steere, 47 Kan. 746, a material amendment of the complaint was al- lowed upon payment of substantially 65 all the costs up to the time of amend- ment. An amendment of the answer may be allowed upon payment of the costs of the cause up to the time of amend- ment. Coleman v. Davis, 13 Colo. 98. After Special Demurrer. In Davis v. Evans, 2 Murph. (N. Car.) 202, the court allowed an amendment of the declaration upon payment of costs after sustaining a special demurrer. And in Condit v. Neighbor, 12 N. J. L. 320, the plaintiff upon amending after a special demurrer had been filed was required to pay the costs. Misnomer of Plaintiff. Misnomer of the plaintiff corporation was amended on the election by the defendant of the costs of the action to the time of amendment or a continuance. Sher- man v. Connecticut River Bridge, n Mass. 338. On Filing New Plea on Appeal. In North Carolina the Superior Court on appeal from a justice may allow a new plea to be filed and require payment of all costs up to that time. Hinton v. Deans, 75 N. Car. 18. Amendment in Appellate Court. In Weed v. Richardson, 2 Dev. & B. (N. Car.) 535, the plaintiff, upon amend- ing in the appellate court, in a case where an actual amendment was nec- essary, was required to pay the costs in both courts. To the same effect, see Grist v. Hodges, 3 Dev. (N. Car.) 198. In Stone v. White, 8 Gray (Mass.) 589, the plaintiff was allowed to amend in the appellate court so as to conform to the proof, he taking no costs since the trial. Obviating Technical Objection. On granting leave to amend the com- plaint so as to cure a technical objec- tion, the court need not impose all the costs of action as a condition. Min- ton v. Home Ben. Soc. (Supreme Ct.), 16 N. Y. St. Rep. 1001. Changing a Date. Where the plain- tiff was allowed to amend by chang- ing the date of an alleged transaction in his bill of particulars, the defend- ant having no ground to claim sur- prise, it was erroneous to require the plaintiff to pay the costs and permit a Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Controlling Considerations. The severity of the terms imposed is largely determined by the materiality of the amendment and the stage of the case at which it is offered. 1 See also Chapman v. Webb, 6 How. Pr. (N. Y. C. PI.) 390; Jackson v. San- ders, 2 Edm. Sel. Cas. (N. Y.) 12. Amendment of Declaration After Flea. In Holmes v. Lansing, i Johns. Cas. (N. Y.) 248, the court established the practice of allowing an amend- ment of the declaration after plea only upon payment of costs and giving im- parlances. Bringing in New Plaintiffs. Where new parties plaintiff are brought in by amendment, it is proper to tax costs on the party amending. Lanes v. Squyres, 45 Tex. 382 ; Clawson v. Cone, 2 Handy (Ohio) 67; Boyd v. Steamboat Falcon, i Handy (Ohio) 362. But if the new plaintiff be merely formal and no objection was taken in the trial court, it has been held that the requisite amendment could be made in the appellate court without terms. Grant v. Rogers, 94 N. Car. 755- Striking Ont Coplaintiff. Where an unnecessary party is joined as plain- tiff, either through ignorance or care- lessness, the party responsible should not be allowed to strike him out by amendment without being taxed with all the costs up to the time of the amendment. Andrus v. Pettus, 36 Tex. 108. Striking Out a Defendant in Effect. A party should not be allowed to amend on the trial by striking out all the allegations referring to one of the defendants, so as to virtually discon- tinue the action as to him, except upon payment of all costs in the action, whether awarded to him on appeal from a former judgment or otherwise. Kent v. Popham, 6 Civ. Pro. Rep. (N. Y. Supreme Ct.) 336. Costs or Continuance at Option. On the trial the defendant was allowed to annex an affidavit to his plea of non est factum upon payment of costs or consenting to a continuance at the plaintiff's option. Taylor v. Colvin, Wright (Ohio) 449. Election and Waiver. Upon an ap- plication at the trial for leave to file an amended answer containing two inconsistent defenses, the court may require that the defendant elect on which defense he will rely, and also continuance. Tate v. Hamilton, 81 Mich. 221. 1. Costs and Continuance. In Jack- son v. Warren, 32 111. 331, the action of the trial court in granting leave to amend a complaint in forcible entry and detainer upon payment of all the costs up to the time of amendment, and thereupon granting a continu- ance, was held to be proper. After Nonsuit. Where, after non- suit for want of a special count, the plaintiff was permitted to amend, he was required to pay the defendant's costs of the plea and the subsequent proceedings, together with the costs of opposing the motion. Bennett v. New York, i Sandf. (N. Y.) 658. In Downer v. Thompson, 6 Hill (N. Y.) 377, a plaintiff nonsuited at the circuit was not allowed to amend by adding a count adapted to the nature of the case without payment of all costs subsequent to the plea. Introducing New Cause of Action. Where leave is given to introduce a new cause of action after trial before a referee, the plaintiff should be re- quired to stipulate to set aside the re- port and vacate the order of reference, with costs to abide the event; and the order should provide for service of the amended complaint and summons and for time for defendant to answer. Allaben v. Wakeman, 10 Abb. Pr. (N. Y. Supreme Ct.) 162. And generally an amendment set- ting up a new cause of action should be allowed only upon payment of all costs previously incurred. Woods v. Durrett, 28 Tex. 429. Changing Entire Form of Action. Where plaintiff's amendment changes the entire form of action, the practice is to require him to pay all the defend- ant's costs. Carriers. Dellay, 3 How. Pr. (N. Y. Supreme Ct.) 173, distin- guishing Alston v. Mechanics' Mut. Ins. Co., i How. Pr. (N. Y.) 82. After New Trial Granted. In Spawn v. Veeder, 4 Cow. (N. Y.) 503, the plaintiff was allowed to amend his bill of particulars after the granting of a new trial and after two notices of trial, on payment of costs to the t'me of amendment, if the defendant should vary his defense; otherwise upon pay- ment only of the costs of the motion. 6 5 i Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. After Verdict. The plaintiff will not be allowed to amend after verdict in his favor by increasing the damages claimed unless he abandons his verdict, pays the defendant's costs of the trial and of resisting the motion, and consents to a new trial. 1 that a written reply shall be waived. Caldwell v. Bruggerman, 8 Minn. 286. Filing New Rejoinder. Upon affida- vit that a rejoinder tendering a mere question of law was filed under a mis- take, the defendant had leave to re- join anew on the terms of paying the plaintiffs their costs since the rejoin- der and taxing no costs for the same period in the case after being ulti- mately the prevailing party. Rixford v. Wait, n Pick. (Mass.) 339. Second Amended Answer. The de- fendant should not have leave to serve a second amended answer just before trial without paying taxable term fees and filing and serving, an affidavit of merits. Haggerty v. Phelan (Super. Ct.), iS N. Y. Supp. 789. After Referee's Report. In Proctor v. Andrew, I Sandf. (N. Y.) 70, a refer- ee's report was set aside and the plain- tiff permitted to amend, but upon pay- ment of the costs of the reference and of the subsequent proceedings, the ob- jection which made the amendment necessary having been taken before the referee on the first opportunity. See also Smith v. Proctor, I Sandf. (N. Y.) 7 2. Costs Divided. In the federal court an amendment curing a defective averment of diverse citizenship was allowed pending a motion in arrest of judgment, each party paying half the costs as then taxed. Maddox v. Thorn, 60 Fed. Rep. 217. Costs of Former Appeal. Where the court allowed the plaintiff to amend his original petition and taxed all the costs of the district court up to the time of the amendment against him, it properly refused to tax against him the costs of the Supreme Court on a former appeal which was decided against the defendant. Armstrong v. O'Brien, 83 Tex. 635. Adding New Defendant. Plaintiff as a condition of being allowed to amend his petition at the hearing by intro- ducing a necessary party defendant may be required to give security for costs and to pay a solicitor's fee and witness fees to be taxed. Rugg v. Bassett (Mich., 1894), 59 N. W. Rep. 645- Striking Out a Defendant. In Bemis v. Bronson, i Code Rep. (N. Y.) 27, the plaintiff was allowed to strike out the name of a defendant after the evi- dence was closed and in order to con- form to the proof, upon payment of his costs and allowing the trial to stand over if the other defendant should so desire. After Verdict Set Aside. In Hopf v. U. S. Baking Co. (Super. Ct.), '21 N. Y. Supp. 589, the plaintiff was allowed to amend after a verdict in his favor was set aside, upon paying defend- ant's attorney's fees, a trial fee, and $10 costs for opposing the motion to amend. An amendment at that stage was al- lowed upon full payment of costs in Troy, etc., R. Co. i>. Tibbits, n How. Pr. (N. Y. Supreme Ct.) 168, and Utica Ins. Co. v. Scott, 6 Cow. (N. Y.) 606. See also Prindle v. Aldrich, 13 How. Pr. (N. Y. Supreme Ct.) 466; Downer v. Thompson, 6 Hill (N. Y.) 377; Carrier v. Dillaye, 3 How. Pr. (N. Y. Supreme Ct.) 173 ; Hare v. White, 3 How. Pr. (N. Y. Supreme Ct.) 297; Halls'. Snowhill, I4N. J. L. 8. In Rogers v. Phinney, 13 N. J. L. i, the plaintiff upon amending was re- quired to pay the costs of the motion and the costs of the defendant in the court of appeals. After Reversal on Appeal. So, after a reversal by the appellate court, and where the defendant was allowed to amend his answer and was in fault for not applying sooner, it was upon payment of all the plaintiff's disburse- ments, as well as the costs of service of summons and complaint. Ferris v. Hard (Super. Ct.), 27 N. Y. Supp. 222, 6 Misc. Rep. 359. Where an amendment is asked for after reversal and remand in order to obviate an error which was the ground of reversal, the party should be re- quired to pay the costs of the motion and the costs of the opposite party in the appellate court. Rogers v. Phin- ney, 13 N. J. L. i. The terms should in all cases De consistent with the judgment of the appellate court. Ireland v. Metropoli- tan El. R. Co. (Super. Ct.), 8 N. Y. St. Rep. 127. 1. Dox v. Dey, 3 Wend. (N. Y.) 356; 6 5 2 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Without Terms. But the imposition of terms presupposes the party to whom leave is granted to be resting under neglect or in- attention to his rights ; and where an amendment is trivial and offered in due time, or for other reasons cannot be prejudicial to the adverse party, it is frequently allowed without terms. 1 Brown v. Smith, 24 111. 196, where it was declared that all amendments of substance after verdict must be made only upon the terms stated in the text, citing Tomlinson v. Blacksmith, 7 T. R. 128. See also Hoffnagle v. Leavitt, 7 Cow. (N. Y.) 517; Bowman v. Earle, 3 Duer (N. Y.) 691. To Cure a Variance. In Carpenters. Payne, 10 Wend. (N. Y.)6o4, the plain- tiff was permitted to amend after ver- dict so as to cure a variance without costs; but the verdict was vacated in order to give the defendant an oppor- tunity to contest the case on the merits, which he had neglected to do, because he had relied upon the variance. Correcting Description of Locus. In Bannon v. Angier, 2 Allen (Mass.) 128, an action in tort for the obstruction of a way, the plaintiff was allowed to amend after verdict by changing the description of the way, the plaintiff taking no costs up to the time of filing the amendment. 1. Brinkley v. Mooney, 9 Ark. 445, where the trial court was reversed for imposing terms. Preventing Immaterial Issue. Where the court permits an amendment for the purpose of preventing the jury from finding upon an imma- terial issue, it is allowed without costs to either party. Ham v. Ham, 37 Me. 261. Informality in Replication. Where a replication was demurred to specially for informality in the conclusion, the plaintiff was allowed to amend with- out any terms. Hartwell v. Hemmen- way, 7 Pick. (Mass.) 117. Here Clerical Mistakes. In Munroe v. Cooper, 5 Pick. (Mass.) 412, the plaintiff was allowed to amend with- out costs by setting up the true date and place of execution of the note in suit. It was not an abuse of discretion to allow the plaintiff on the trial, and without costs, to correct a clerical error in the ad damnum clause of the declara- tion where the merits of the case could not be affected. Borden v. Clark, 26 Mich. 410. In Chandos v. Edwards, 86 Wis. 493, it was held reversible error to re- fuse to permit the plaintiff to amend on the trial without costs or delay in order to correct a "mere slip of the pen." It was held in Tate v. Hamilton, 81 Mich. 221, to be an abuse of discre- tion to refuse to allow a mere formal amendment of plaintiff's bill of par- ticulars except upon condition of his paying the costs and submitting to a continuance. Where Defendant was Misled. The defendant having been misled by the plaintiff's declaration, he was per- mitted to amend without terms by pleading the statute of limitations. Brickett v, Davis, 21 Pick. (Mass.) 404. Prayer for Relief. The prayer for relief may be amended at any stage of the case without terms. Draper v. Moore, 2 Cin. Sup. Ct. Rep. (Ohio) 167, But in People v. Fields, 50 How. Pr. (N. Y. Supreme Ct.) 481, where the prayer was amended on a second trial, it was upon payment of costs to the defendant up to that trial. Striking Out Plaintiffs. Amendments by striking out the names of several plaintiffs may be made on payment of the costs of the term. Collins v. Townsend, 2 Harr. (Del.) 317, n. a. But it is not an abuse of discretion to allow the amendment, without costs. Tormey v. Pierce, 49 Cal. 306. During the Trial. The court may al- low a libel for divorce to be amended during the trial without terms. Har- rington v. Harrington, 107 Mass. 329. In Hagins v. DeHart, 12 How. Pr. (N. Y. Supreme Ct.) 322, the plaintiff was permitted to amend on the trial without costs unless the defendant could show that he was not prepared to meet the new issue. So in Miller v. Garling, 12 How. Pr. (N. Y. Supreme Ct.)2O3. See also Beneway v. Thorp, 77 Mich. 181. In Cooper v. McKeen, n Colo. 41, the plaintiff was allowed to amend during the trial without terms so as to allege the date when the claim sued upon became due. 653 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. Government Pays No Costs. It is not according to rule for the gov- ernment to be ordered to pay costs upon being granted leave to amend. 1 17. Amendments in Miscellaneous Proceedings a. GREAT LATI- TUDE ALLOWED. Under the statute of amendments the courts may correct defects not only in the ordinary pleadings in civil causes, but may allow amendments in almost every species of pro- ceeding before judicial or quasi-judicial tribunals. 2 b. AFFIDAVITS. Affidavits incident to judicial proceedings, such as that of merits or for a continuance, are usually amendable 3 In Bonner v. Home Ins. Co., 13 Wis. 677, an amendment was allowed at the trial, without costs, describing with greater exactness the policy of insur- ance upon which the suit was founded. Pending Motion in Arrest. An amend- ment after verdict and pending a mo- tion in arrest of judgment curing a variance between the name of defend- ant as stated in the petition and as signed to the promissory note sued on, was properly allowed without terms, the defendant not being prejudiced. Thomson v. Wilson, 26 Iowa 120. After Error Brought. If there is an agreement by attorneys in the trial court for an amendment the court will give leave to amend after error brought and without terms. Johnson v. Chaffant, I Binn. (Pa.) 75. After Remand from Appellate Court. On remand from the appellate court after a decision that the complaint stated a cause of action defectively, it is within the discretion of the court to allow an amendment without terms. Wallace v. Columbia, etc., R. Co., 37 S. Car. 335; Wells v. American Express Co., 49 Wis. 224. Absence of Delay. If an amendment require a continuance, leave will be granted only on payment of the costs of the term. Kingz/. Phillips, i Houst. (Del.) 349; Doe v. Prettyman, i Houst. (Del.) 334. Otherwise, it may be granted without conditions. Doe v. Prettyman, i Houst. (Del.) 334. 1. State v. Folsom, 26 Me. 209. 2. What Constitutes Pleading. In Snelling v. Darrell, 17 Ga. 141, where a motion for a new trial was deemed to be a part of the pleadings in the case, and therefore amendable, Lump- kin, J., said: " Pleadings have a re- stricted as well as a general meaning. The one is denominated regular and the other irregular or collateral plead- aig. The former begins with the declaration and terminates with the issue of fact or of law, or both. The latter includes bills of exceptions, writs of error, motions for new trials, and everything which transpires dur- ing the progress of the cause from its inception to its consummation." See also Roundtree v. Rutherford, 65 Ga. 444- Qtio Warranto Proceedings are in the nature of civil proceedings and amend- able. Com. v. Gill, 3 Whart. (Pa.) 228. The statutes usually authorize the amendment of " pleadings or proceed- ings." Basis of Action Not Amendable. Pro- ceedings under the California Code Civ. Pro. 989-994, for the purpose of binding a partner by a judgment against his copartner, are in the nature of an action upon a judgment, and neither the pleadings nor the judgment in the original action can be amended. Waterman v. Lipman, 67 Cal. 26. 3. Clerical errors are amendable; Murphy v. Hall, 38 Hun (N. Y.) 528; or omissi' - of jurat, Hees v. Snell, 8 How. Pr (N. Y. Supreme Ct.), 185, note; or omission of certificate of sec- retary of state, Lawton v. Kiel, 51 Barb. (N. Y.) 30. See also Bowman v. Sheldon, 5 Sandf. (N. Y.) 657, com- menting on Clickman v. Clickman, I N.Y. 6n. An affidavit of merits is amend- able, Wells v. Booth, 35 Mich. 424; and also an affidavit of publication, In re Newman, 75 Cal. 213; Burr v. Seymour, 43 Minn. 401; Higgs v. Huson, 8 Ga. 317; or of service, Den v. Fen, 12 N. J. L. 321; and an affida- vit in bastardy proceedings, State v. Giles, 103 N. Car. 391; and a laborer's affidavit for writ of seizure, May v. Williams, 61 Miss. 126; and an affida- vit to the truth of a plea, Baker v. Wahrmund, 5 Tex. Civ. App. 268; Taylor v. Colvin, Wright (Ohio), 449; 654 01 Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. where the defect is not jurisdictional. 1 (See article AFFIDAVITS.) c. PETITIONS. Petitions by interveners may be amended ; a and a petition for condemnation by eminent domain, 3 a petition to lay out a road, 4 a petition for partition, 5 a petition to require an executor to give bond, 6 a petition for reestablishment of lost papers, 7 a petition for a rehearing 8 or writ of review, 9 a petition for mandamus, 10 a petition by an insolvent debtor 11 and a return to the alternative writ, 12 a petition under a statute to foreclose a mortgage, 13 a petition under a statute to enforce payment of a ment by joining other persons having interest in the land. Wood v. West Boston, etc., Bridges, 122 Mass. 394. See further, for amendment in pro- ceedings by eminent domain, In re Rochester R. Co., 19 Abb. N. Cas. (N. Y. Supreme Ct.) 421; Colorado Cent. R. Co. v. Allen, 13 Colo. 230; Bow- man v. Venice, etc., R. Co. 102 111. 459; Chicago, etc., R. Co. v. Gates, 120 III. 86. 4. Pridgen v. Anders, 7 Jones (N. Car.) 257, holding that it is an "action;" In re Patten's Petition, 16 N. H. 277. See also In re Melton's Petition, 20 N. H. 261. 5. Swanton v. Crocker, 52 Me. 415. 6. Phillips v. Smith, 62 Ala. 575. 7. Hart v. Smith, 20 Fla. 58. 8. Dothard v. Teague, 40 Ala. 583, after a demurrer to the original petition. 9. Elwell v. Sylvester, 27 Me. 536; Winch v. Hosmer, 122 Mass. 438, under authority to allow amendments in any civil suit or proceeding; Daven- port v. Holland, 2 Cush. (Mass.) i, the court holding that though not strictly a " civil action," it is a " proceeding." 10. State v. Bailey, 7 Iowa 390; State v. Slavan, n Wis. 153; State v. Pierce County, 71 Wis. 321, holding that it may be amended to conform to the proof; Fornoff v. Nash, 23 Ohio St. 335; State v. Baggott (Mo., 1888), 8 S- W. Rep. 737, by express statute. 11. In re Johnson, i Ashm. (Pa.) 157. 12. Springfield v. Hampden County, 10 Pick. (Mass.) 59. The alternative and peremptory writs were amended in State v. Fran- cis, 95 Mo. 44, and the alternative writ in State v. Minneapolis, etc., R. Co., 39 Minn. 219; Johnes v. State Auditor, 4 Ohio St. 493. See also State v. Bailey, 7 Iowa 390; Wheeler v. Northern Colo. I. Co., ro Colo. 582; State v. Milwaukee, 22 Wis. 397. 13. Ledbetter v. McWilliams, 90 Ga. 43, it is a " pleading." and an affidavit in proceedings sup- plementary to execution, Burkett v. Bowen, 118 Ind. 379; and an affidavit in replevin, Frink v. Flanagan, 6 111. 35; Cutler v. Rathbone, I Hill (N. Y.) 204; Cassidy v. Fleak, 20 Kan. 54; Hauf v. Ford, 37 Ark. 544; Applewhite v. Allen, 8 Humph. (Tenn.) 697; Mar- tinez v. Martinez, 2 N. Mex. 464; Romero v. Luna (N. Mex., 1892), 30 Pac. Rep. 855. Affidavits to foreclose mortgages are amendable, Nicholson v. Har- ris, 90 Ga. 257, compare Lewis v. Frost, 69 Ga. 755; and an affidavit for a continuance, Lucas v. Sevier, i Overt. (Tenn.) 105; but it will not be amended after the court has passed upon the motion, Pence v. Christman, 15 Ind. 257. As to amendments of affidavits of illegality in Georgia, see Inman v. Miller, 71 Ga. 293; County of Lee v. Walden, 68 Ga. 664. 1. Jurisdictional Defect. In Harris v. Durkee, 50 N. Y. Super. Ct. 202, where the jurat of an affidavit to procure an order of arrest was not in proper form, it was held that the de- fect was jurisdictional and could not be amended. But see Hudson v. Fishel, 17 R. I. 69, and Baker Mfg. Co. v. Knotts, 30 Kan. 356, the latter case holding that a district judge at chambers has power to permit an amendment of an affidavit for an order of arrest. In Georgia a claim affidavit is the foundation of a legal proceeding and cannot be amended. Blackwell v. Pennington, 66 Ga. 240. See, how- ever, Goldie v. McDonald, 78 111. 605; Veal v. Perkerson, 47 Ga. 92. 2. Gillis v. Carter, 29 La. Ann. 698. See Taylor v. Gillean, 23 Tex. 508. 3. Contra Costa Coal Mines R. Co. v. Moss, 23 Cal. 324, by express statute. See also Pittsburgh, etc., R. Co. v. Swinney, 59 Ind. 100. But the court may refuse to allow an amend- 655 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. mechanic's lien, 1 the petition by a claimant in an action for the trial of a right to property, 2 a petition for removal of a cause to a federal court, 3 a petition to the probate court in behalf of an infant to have land set apart for his benefit, 4 or by an adminis- trator for the sale of lands belonging to the estate, 5 a petition in drainage proceedings, 6 a petition to county commissioners to alter a town way, 7 or to assess damages for the construction of a railroad, 8 and a petition to the mayor and aldermen for the assessment of damages for a local improvement. 9 d. MISCELLANEOUS. Bills of particulars are amendable; 10 and a copy of the note sued on and attached to the declaration, 1 1 a speci- fication of claim, 18 a statement of an account against the estate of a decedent on a hearing before the probate court, 13 a notice of special matter accompanying a plea of the general issue, 14 special denials required by statute, 15 complaints in forms prescribed by statute, 16 a referee's report, 17 a motion for anew trial, 18 a report of the evidence made upon a motion to set aside a verdict as against the evidence, 19 an assignment of errors, 20 a caveat, 21 scire facias on a recognizance, 22 the pleadings by which an issue is formed be- tween the plaintiff and the trustee in foreign attachment, 23 notices of pendency and returns to attachments, 24 offers of judgment, 25 1. McGee v. Piedmont Mfg. Co., 7 S. Car. 263; Challoner v. Howard, 41 Wis. 355; Witte v. Meyer, n Wis. 295; Huse v. Washburn, 59 Wis. 414. 2. Cleveland v. Tufts, 69 Tex. 580. 3. Hall v. Chattanooga Agricultural Works, 48 Fed. Rep. 599; Glover v. Sheppard, 15 Fed. Rep. 833. . Hudson v. Stewart, 48 Ala. 204. 5. Brown v. Powell, 45 Ala. 149. See also Fennell v. Tucker, 49 Ala. 453; Lucich v. Medin, 3 Nev. 93. 6. Metty v. Marsh, 124 Ind. 18; Turns v. Simmons, 101 Ind. 557; Will- iams v. Stevenson, 103 Ind. 243; Cool- man v. Fleming, 82 Ind. 117. 7. New Marlborough v. Berkshire County, 9 Met. (Mass.) 424; Dart- mouth v. Bristol County, 153 Mass. 12. See also McKeen v. Porter, 134 Ind. 483. Compare Spencer v. Graham, 5 Ind. 158, decided before the enact- ment of the Indiana Practice act. 8. Grand Junction R., etc., Co. v. Middlesex, 14 Gray (Mass.) 553 " in the nature of a civil action and within the spirit if not the letter of the stat- ute." See also Sanger v. Newton, 134 Mass. 308. 9. Porter v. Newton, 133 Mass. 56. 10. See post, BILLS OF PARTICULARS. 11. Chapman v. Skellie, 65 Ga. 124; Stevens v. Campbell, 6 Iowa 538. 12. Pierce v. Wood, 23 N. H. 519. 13. In re Hidden, 23 Cal. 362. 14. Rosevelt v. Gardiner, 3 N. J. L. 571; Hopkins v. Briggs, 41 Mich. 175; Minnock v. Eureka, F., etc.. Ins. Co., 90 Mich. 236; Mason v. Peter, 58 Mich. 554; People -v. Judges (Mich., 1888). 38 N. W. Rep. 322. 15. Ham v. Kervvin, 146 Mass. 378. 16. Kennedy v. Vandiver, 55 Ga. 171; Akin v. Bartow County, 54 Ga. 59; Bailey v. Jones, 14 Ga. 384; Vreeland v. Ryerson, 28 N. J. L. 205. 17. Wilson v. Schorop, 62 Hun (N. Y.)62i, 16 N. Y. Supp. 823. It is always competent for the court to send a referee's report back to him to make such corrections and supply such inadvertent omissions as may be made from the report itself even where no exceptions are taken. Runnels v. M off at, 73 Mich. 188; Bryants. Hen- dee, 40 Mich. 543. A referee may by permission of the judge amend the form of his report after it has been filed in court without a formal order to recommit. Fales v. Hemenway, 64 Me. 373. 18. See post, NEW TRIAL. 19. Treatz'.Union Ins. Co. ,56 Me. 231. 20. See/<7j-/, ASSIGNMENT OF ERRORS. 21. Daniel v. Phelps, 86 Ga. 363. 22. Peacock v. People, 83 111. 331. 23. Butman v. Hobbs, 35 Me. 227. 24. Vanderheyden v. Gary, 38 How. Pr. (N. Y. Supreme Ct.) 367. 25. Eagan v. Moore, 2 Civ. Pro. Rep. 656 Of Pleadings, etc., at AMENDMENTS. Common Law, under Codes, etc. the statement required to be signed and verified upon confession of judgment, 1 a rule upon which money has been brought into court, 2 a motion and notice in proceedings against a sheriff for failing to pay over on demand, 3 a bill of costs and the affidavit accompanying it, 4 a bond in replevin, 5 a bond for a ne exeatf interrogatories filed on the return of an attachment against a sheriff for not returning process, 7 pleadings in civil suits to re- cover penalties for violation of municipal ordinances, 8 a summary proceeding by notice and motion, 9 plaintiff's sworn statement in an action for injuries from a defective highway, 10 the pleadings in proceedings for judgment against delinquent lands for taxes, 11 a notice served with the summons stating the amount for which judgment will be taken in case of default, 13 a citation to a creditor in a poor debtor's disclosure. 13 A general notice of appearance may be amended so as to make it special. 14 A notice of motion may be amended so as to make it conform to a ruleof court by stating the grounds of the motion. 15 In an election contest the statement of the grounds of contest may be amended, 16 and the specifications in an answer (N. Y. C. PI.) 300; Stark v. Stark, 2 How. Pr. N. S. (N. Y. Supreme Ct.) 360. Compare the earlier cases of Riggs v. Waydell, 17 Hun (N. Y.) 515, affirmed, 78 N. Y. 586. 1. Mitchell v. Van Buren, 27 N. Y. 300; Cook v. Whipple, 55 N. Y. 150; Symson v. Silheimer, 40 Hun (N. Y.) 116; Thorp -j. Platt, 34 Iowa 314. Where a confession of judgment does not state a cause of action an amendment cannot be allowed after trial unless the evidence shows a suf- ficient cause of action. Southern Porcelain Mfg. Co. v. Thew, 5 S. Car. 5. 2. Freeze v. Marston, 5 N. H. 220. See also Jones v. Hoar, 5 Pick. (Mass.) 285. 3. Walker v. Turnipseed, 8 Ala. 679. 4. Burnham v. Hays, 3 Cal. 115, be- cause it is a " proceeding." But see Jeffery v. Hursh, 58 Mich. 247. 5. Dale v. Gilbert (Ct. of App.), 40 N. Y. St. Rep. 353; Smith v. Howard, 23 Ark. 203. Contra, Simpson v. Wil- cox (R. I., 1892), 25 All. Rep. 391. G. Fitzgerald v. Gray, 59 Ind. 254. 7. People v. Brown, 6 Cow. (N. Y.) 41. 8. Bristol v. Burrow, 5 Lea (Tenn.) 128; Childress v. Nashville, 3 Sneed (Tenn.) 347; Washington v. Frank, I Jones (N. Car.) 436. 9. Palmer v. Fitts, 51 Ala. 489. i Encyc. PI. & Pr. 42. 10. Harvey v. Northwood, 65 N. H. 117. 11. Walsh v. People, 79 111. 521, by express statute, however. 12. Cassidy v. Boyland, 15 Civ. Pro. Rep. (N. Y. City Ct.) 320, holding that the amendment should be made only upon notice. 13. Driscoll v. Stanford, 74 Me. 103. See Perry v. Plunkett, 74 Me. 328. 14. Hohorst v. Hamburg-American Packet Co., 38 Fed. Rep. 273; U. S. v. Yates, 6 How. (U. S.) 605. Where an infant defendant appears by attorney the proceedings may be amended by entering an appearance by guardian. Smith v. Minor, i N. J. L. 416. 15. Sweeney v. Stanford, 60 Cal. 362, holding it reversible error to refuse where the grounds of the motion were stated in an affidavit attached to the notice. 16. Minor v. Kidder, 43 Cal. 229; Preston v. Culbertson, 58 Cal. 198; In re Contested Election, 10 Phila. (Pa.) 579; In re Contested Elections, 2 Brewst. (Pa.) i ; In re Election Cases, 65 Pa. St. 20, holding that the court may amend as at common law. Con- tra, Ford v. Wright, 13 Minn. 518. In Halstead v. Rader, 27 W. Va. 818, it was held that a notice which does not state some substantial ground of contest cannot be amended. See also Ralston v. Meyer, 34 W. Va. 737. 657 Of Process. AMENDMENTS. Of Writ or Summons. therein. 1 The statement of the parties in an agreed case cannot in general be amended. 8 In proceedings lo collect a local assessment an informal special tax bill cannot be amended by the court. 3 Exceptions to an auditor's report are not pleadings in such a sense as to give the right of amendment by adding new exceptions after other exceptions have been filed and disallowed and the time for excepting has elapsed. 4 Where no sum is mentioned in the minutes of the recognizance for costs upon a writ, or where the name of the person recognized is omitted, the court has no power to amend the defect. 5 It has been held that a petition for certiorari must set forth specifically the ground of error, and is not amendable. 6 IV. OF PROCESS 1. Of Writ or Summons a. IN GENERAL. By the Common La^v, process was not amendable where it appeared upon the face of it that it was absolutely void. 7 If it were not a nullity, the old rule was that an amendment would be allowed where there was anything to amend by ; 8 but even this was not In Loomis v. Jackson, 6 W. Va. 617, it was held that where the proceed- ings are before a body which has no common law jurisdiction, but becomes functus ojficio as soon as the cause is determined, there can be no amend- ment whatever. 1. In re Contested Elections, I Brewst. (Pa.) 67. 2. See ante, AGREED CASE, V, 3. 3. Galbreath v. Newton, 45 Mo. App. 312. See also Chemung Nat. Bank v. Elmira, 39 How. Pr. (N. Y. Supreme Ct.) 373. 4. Suttles v. Smith, 75 Ala. 830. 5. Peck v. Smith, 3 Vt. 265. 6. Western, etc., R. Co. v. Jackson, 81 Ga. 478; Singer Mfg. Co. v. Walker, 77 Ga. 649. Contra in New York, People v. Cook, 62 Hun (N. Y.) 303. 7. Leetch v. Atlantic Mut. Ins. Co., 4 Daly (N. Y.) 521; Brigham v. Este, 2 Pick. (Mass.) '420;. Kyles v. Ford, 2 Rand. (Va.) i." Void Process. The Georgia Code, 3490, provides that "void process, or where there is no process or waiver thereof, cannot be amended." In Scarborough v. Hall. 67 Ga. 576, it was held that where the clerk failed to attach any process to the declara- tion, and it was servedalone, it was not competent to amend at a subsequent term by attaching process and order- ing service. In such a case, if there has been an acknowledgement of service without a waiver of process, it is necessary toshow that the process was intended to be waived, and that by accident rr mis- take the entry of such waiver was omitted in crder to entitle the plaintiff to supply the omission by a nunc pro tune amendment. Ross v. Jones, 52 Ga. 22. Where a complaint and summons are served without the name of any court appearing therein the summons is not amendable. Ward v. Stringham, i Code Rep. (N. Y. Supreme Ct.) 118. An amendment of a summons in the superior court that would if made in the justice court have given the justice jurisdiction which he did not possess before the amendment will not be al- lowed. Allen v. Jackson, 86 N. Car. 321. Compare McLean v. Breece, 113 N. Car. 390. Process Not Void. A summons which states that the complaint is "annexed," when in fact no complaint is annexed, and which omits to state when and where a complaint will be filed, is not a nullity and may be amended. Keeler v. Belts, 3 Code Rep. (N. Y.) 183; Foster v. Wood, i Abb. Pr. N. S. (N. Y. C. PI.) 150. In Georgia, under the judiciary act of 1799, which required the process to be "annexed" to the writ, if it were indorsed on the back of the writ and omitted to state the case or name the defendant it was amendable. Smith v. Morris, 29 Ga. 339. 8. Leetch v. Atlantic Mut. Ins. Co., 4 Daly (N. Y.) 523. Something to Amend By. In Dean v. Swift, ii Vt. 331, an original writ con- 658 Of Process. AMENDMENTS. Of Writ or Summons. adhered to, and amendments have been allowed where there was nothing to amend by. 1 Under the Modern statutes authorizing amendments of any pleading, process, or proceeding, 2 in form or substance, an amendment will generally be allowed whenever it is in furtherance of justice, 3 tained a wrong return day, but it was returnable to the right term, and it was held sufficient to amend by. In Dwight v. Merritt, 18 Blatchf. (U. S.) 305, it was said that there must be something to amend and to amend by. See also U. S. v. Turner, 50 Fed. Rep. 734. In Course v. Stead, 4 Dall. (U. S.) 22, a writ of error was directed to the judges, etc., of the district aforesaid, and no district was previously named, but the (attestation of the record was in the proper district, and it was prop- erly indorsed, etc. It was held that there was enough to amend by. In U. S. v. Rose, 14 Fed. Rep. 681, an amendment was refused apparently because there was nothing to amend by. In Kavanaugh v. Brown, I Tex. 481, the writ was amended by the petition. But in Texas the petition is filed be- fore issuing the writ. In Jones v. Cox, 7 Mo. 173, an amendment was allowed to conform to the declaration, the latter preceding the writ in Missouri. In Emmons v. Bailey, I Strobh. (S. Car.) 422, the writ was amended to conform to the declaration; also in Wilday v. Wight, 71 111. 374. In Beooerv, Frey, I Binn. (Pi.) 366, habeas corpus for the removal of a case was amended by the praecipe. In Porter v. Miller, 7 Tex. 468, a writ of sequestration was amended by the petition. In Jackson v. Fletcher, i Morr. (Iowa) 304, a clerical mistake in suing out a writ in assumpsit instead of debt was amended by the praecipe. In Knapp v. Palmer, i Cai. (N. Y.) 486, a writ of certiorari was amended according to the affidavit on which it was obtained. In Tice v. Monfort, 3 N. J L. 632, it was held that an original writ is not amendable, as there is nothing to amend by. Hence, in Anonymous, 6 N. J. L. 166, a writ of dower was held not to be amendable. In Johnson v. Kentucky Bank, 5 T. B. Mon. (Ky.) 119, it was held that where both the writ and declaration are defective neither can be amended, as there is nothing to amend by. 1. i Tidd Pr. 130; Rutherford v. Mein, 2 Smith 392, where it was urged that, the writ being radically defective, the application was not to amend, but to supply; but the court allowed it upon the authority of Carr v. Shaw, 7 T. R. 295, where it was said that " the amendment was allowed without any- thing dehors to amend by." 2. Commission to Take Testimony. In Leetch -v. Atlantic Mut. Ins. Co., 4 Daly (N. Y.) 518, it was held that a commission to take testimony was either a " process " or "proceeding," and therefore amendable under the New York statute; and after it had been executed and returned the court indorsed upon it the allowance of the interrogatories and a direction as to the return, such as he would have done had he been applied to before the commission was dispatched. In Nicks v. Rector, 4 Ark. 251, a commission to take testimony was held to be amendable as process. 3. Without Prejudice to Acquired Bights. Process will not be amended where third parties have acquired rights which will be prejudiced there- by. Phillips v. Holland, 78 N. Car. Summons Changed to Attachment. It was held in Matthews v. Blossom, 15 Me. 400; Ordway v. Wilbur, 16 Me. 263, and Carter v. Thompson, 15 Me. 464, that the court could permit a writ of original summons to be changed to a writ of attachment. Description of the Justice. An omis- sion in a justice's summons to de- scribe the justice as of the county for which he was elected is amendable after appearance by the defendant. Drake v. Berry, 42 N. J. L. 60. Writ of Replevin. A writ of replevin was amended on terms by changing it from cepit and detinet to detinet alone after its execution and appearance by defendant, where it appeared that the attorney issuing it misapprehended the facts in the case. Smith v. Fri- zell,~i How. Pr. (N. Y.) 148. In Jaques v. Sanderson, 8 Cush. 659 Of Process. AMENDMENTS. Of Writ or Summons. if the court has jurisdiction of the parties and of the action in which the amendment is sought to be made. 1 And defects in the process amendable in the trial court will be regarded as amended in the appellate court. 2 b. FEDERAL, How FAR CONTROLLED BY STATE PRACTICE. A federal statute provides that the practice pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall con- form as near as may be to the pleadings and forms and modes of (Mass.) 271, a writ of replevin was amended by inserting an averment of the value of the property. In Judson v. Adams, 8 Cush. (Mass.) 556, a writ of replevin in an action pending in Norfolk, which al- leged the taking of the goods to have been in Suffolk, was amended by alleg- ing the taking to have been in Nor- folk. The amendment of a writ of replev- in, after the execution of the statu- tory bond, by inserting other property in the writ without the knowledge or consent of the sureties, by stipulation of the respective parties discharges the sureties from liability. Bolton v. Nitz, 88 Mich. 354. Showing Summons to Be an Alias. An original summons may be amended so as to show that it was an alias. Huss v. Central R. & B. Co., 66 Ala. 472; Alabama, etc., R. Co. v. Hawk, 72 Ala. 112. Audita ftuerela. In Stone v. Cham- berlain, 7 Gray (Mass.) 206, a writ of audita querela improperly called in the declaration an action of tort was amended by striking out those words. Writ of Right. In Boston Poor Over- seers v. Otis, 20 Pick. (Mass.) 38, it was held that a writ of right is amend- able. Writs of Mandamus. Alternative and peremptory writs of mandamus may be amended. State v. Francis, 95 Mo. 44; State v. Minneapolis, etc., R. Co., 39 Minn. 219. Changing Form of Capias. In Maine a capias writ may be amended by changing its form to capias or attach- ment. Cameron v. Tyler, 71 Me. 27- Changing Civil to Penal Action. In . Walton v. Kirby, 2 Hayw. (N. Car.) 174, it was held that a writ could not be amended so as to convert a civil into a penal action. Covenant to Debt. And in Anony- mous, i Hayw. (N. Car.) 401, that the writ could not be altered from cove- nant to debt. 1. Leetch v. Atlantic Mut. Ins. Co., 4 Daly (N. Y.) 523; White v. Hart, 35 Ga. 269; State -v. Bryant, 5 Ind. 192; Polack v. Hunt, 2 Cal. 193; Culver v. Whipple, 2 Greene (Iowa) 365; Jones v. Miller, i Swan (Tenn.) 319. See also Anonymous, 4 Hill (N. Y.) 603; Burton v. Buckeye Ins. Co., 26 Ohio St. 467. In New York, the Marine Court, being a court of record, has authority to amend an irregularity in a sum- mons. Gribbon v. Freel, 93 N. Y. 93- Want of Jurisdiction. The New York Code Civ. Pro., 3165, subd. 2, pro- vides that when an order from the City Court of New York directing ser- vice of summons without the city or by publication is granted, the sum- mons must state that the defendant is required to answer within ten days; but that if a summons requiring de- fendant to answer within a shorter time has been issued before an order is granted, the justice may direct that the summons be amended, and there- upon the summons published or served without the city, pursuant to the or- der, must correctly state the time. It was held that service of summons upon a non-resident requiring him to answer within six days, where no subsequent order of amendment was made, con- ferred no jurisdiction over the defend- ant, and that an amendment of such summons could not be made after entry of judgment on defendant's de- fault. Bell v. Good (City Ct.), 19 N. Y. Supp. 893. 2. Kaufman v. Sampson, 9 Ind. 520. It was held in Glisson v. Herring, 2 Dev. (N. Car.) 156, that where there was a fatal variance between the writ and declaration the Supreme Court had no Power of amendment. 660 Of Process. AMENDMENTS. Of Writ or Summons. proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding. 1 Another federal statute provides for the amendment of defects in process ; a and it has been held that while the practice in the state courts may enlarge the power of amendment in the federal courts, it cannot diminish such powers as are conferred by the statute last mentioned. 3 And where Congress has by statute pointed out a specific course of procedure, or has legislated generally upon the subject-matter embraced or involved in the proceeding sought to be pursued, such legislation must be followed although opposed to the forms and modes of proceeding prevailing in the state courts and established by the state statutes. 4 c. TITLE, CAPTION, INDORSEMENT Title. Where the title of the action is wrong in the process it may be amended on applica- tion to the court. 5 1. U. S. Rev. Stat., 914. See also supra, III, I, c. Actions for penalties brought in the name of the United States in a federal court sitting in New York correspond with those brought by the state in the name of "the People of the State of New York, "and the summons served must be indorsed with a reference to the statute by which the action for penalty is given, as required by the New York statute. This indorsement is a ma- terial part of the process, and if omit- ted it cannot be inserted by amend- ment. U. S. v. Rose, 14 Fed. Rep. 681, where the reference to the statute was not supplied by the prsecipe; Brown v. Pond, 5 Fed. Rep. 31, 5 Fed. Rep. 41. 2. U. S. Rev. Stat., 954. 3. Norton v. City of Dover, 14 Fed. Rep. 106. See also Tobey v. Claflin, 3 Sumn. (U. S.) 379. 4. Dwight v. Merritt, 18 Blatchf. (U. S.) 305. In that case a suit at common law was commenced in the federal Circuit Court sitting in New York by serving on the defendant a paper purporting to be a summons in the form prescribed by the statute of New York for commencing civil ac- tions, signed by the plaintiff's attorney, but not under the seal of the court nor signed by the clerk of the court. The defendant moved before appearing generally in the suit to set aside the summons, and the plaintiff asked to be allowed to amend the summons nunc pro tune by having the seal and the signature added. It was held (i) that the summons is process and did not conform to 911 of the U. S. Rev. Stat. and was void; (2) the provisions of said 911 are not abrogated by 914 of the U. S. Rev. Stat., providing that the federal courts shall follow the state practice as near as may be; (3) that the summons could not be amended under the federal statutes of amendment, 948 and 954 Rev. Stat., because it was not process of and had not been issued from the court; (4) that the summons must be set aside. 5. Allen v. Allen, 14 How. Pr. (N. Y. Supreme Ct.) 248; Dexter v. Hoo- ver, 2 Cow. (N. Y.) 526; State v. Jus- tice, 24 N. J. L. 413; Readington v. Dilley, 24 N. J. L. 209. See also Bishop v. Weber, 139 Mass. 411. Partnership Instead of Corporation. Where a summons was issued in the name of a partnership instead of a corporation, the mistake being mani- fest, it was properly corrected on mo- tion after judgment. Thurber-Why- land Co. v. Klittner (Supreme Ct.), 16 N. Y. Supp. 828. Corporation Instead of Voluntary Asso- ciation. Where an action was brought against a defendant described as a corporation which was in fact a volun- tary association, the title of the sum- mons was amended by inserting the names of the members. Evoy v. Ex- pressmen's Aid Soc. (Supreme Ct.), 21 N. Y. Supp. 641. Striking Out Deceased Party. The summons maybe amended by striking out the name of a party plaintiff who died before the summons was served. Fink v. Mahattan R. Co. (C. PI.), 29 N. Y. St. Rep. 153- 661 Of Process. AMENDMENTS. Of Writ or Summons. Caption. Where the process does not run in the name of the proper authority it is amendable. 1 Indorsement. The indorsement on a writ may be amended. 8 d. THE DIRECTION. The omission to insert a proper direc- tion ni a writ is not fatal if it is served by the proper officer 3 in a regular manner, 4 and an objection based thereon may be obvi- 1. An original summons not running H. 35, where it was said that "the motion to amend could be properly granted only upon its being shown by affidavit that it might properly have been so made originally, unless that appears on the face of the writ and return." Showing Disqualification of Regular Officers. Where a writ was directed to the coroner instead of the sheriff, the plaintiff was allowed to amend, after a motion to quash, by stating, as a rea- son why it was so directed, that the sheriff was disqualified on account of interest. Moss v. Thompson, 17 Mo. 405; Thompson v. Bremage, 14 Ark. 59; Oliphant v. Dallas, 15 Tex, 138; Gay v. State, 20 Tex. 504. Amendment Cannot Create Authority. Where a writ returnable to the County Court was directed by the magistrate who signed it in these words, "To any sheriff or constable in the state, or to E. K. G., constable of G.," omit- ting to state therein the statute rea- sons for making a special authoriza- tion, and the writ was served by G. out of the town of which he was con- stable, it was held that the service by him was void and that the court had no power to permit the magistrate who signed the writ to amend the direction, after the case had been entered in court, by inserting therein the statute reasons for making the authorization "there was neither a general nor special authority when the ? service was made, and without a judicial act of the magistrate no au- thority could be conferred." Dolbear v. Hancock, 19 Vt. 388. 4. Direction Concerning Replevin Bond. An officer who was directed by a writ of replevin to take certain goods provided the plaintiff should give a bond to the defendant "with suffi- cient surety or sureties in the sum of dollars, being twice the value of in the name of the state may be amended even after plea in abatement. Mitchell v. Conley, 13 Ark. 414. See also Johnson v. Provincial Ins. Co., 12 Mich. 216; McFadden v. Fortier, 20 111. 509; Harris v. Jenks, 2 Scam. (3 HI.) 475- An Order of Arrest of the defendant in a suit is a writ or process within the meaning of the constitution and should run in the name of the state; but such style is matter of form, and may be amended on motion. Ilsley v. Harris, 10 Wis. 95. See also infra, V. , 5. 2. So as to Add Special Counts. It is not error to permit the plain- tiff to amend the indorsement on his writ so that he may add special counts to his declaration. Moore v. Smith, 19 Ala. 774. Date of Copy of Note. Where the date of the note in the copy indorsed upon the process differed from the note upon which the action was brought the plaintiff was allowed to amend. Kennedy v. Holden, 3 Strobh. (S. Car.) 175. To Conform to the Declaration. It is not a defense in an action on a recognizance of special bail that the plaintiff was permitted to amend the indorsement on the writ to correspond with the facts and the declaration, the amendment only changing the descrip- tion and not the cause of action. Enos v. Aylesworth, 8 Ohio St. 322. See also Miller v. Gages, 4 McLean (U. S.) 3. Campbell v. Stiles, 9 Mass. 217; Hearsey v. Bradbury, 9 Mass. 95; Woods v. Ross, ii Mass. 276; Chad- wick -v. Divol, 12 Vt. 499, where the writ was directed to the sheriff of the wrong county, but properly served by the sheriff of another county; Smets v. Wethersbee, R. M. Charlt. (Ga.) 537; Mitchell v. Long, 74 Ga. 94; Telford v. Coggins, 76 Ga. 683; State v. Hall, 78 Me. 37 ; Simcoke v. Frederick, I Ind. 54; Brown v. Dudley, 33 N. H. 511 ; Parker v. Barker, 43 N. the said goods," took a bond with two sureties and served the writ. It was held that the plaintiff might amend his writ by striking out the words "surety or," and that tht service was 662 Of Process. AMENDMENTS. Of Writ or Summons. ated by amendment. 1 e. MISNOMER. The Common Law does not sanction the use of anything else than the true Christian and surnames of the parties to the suit ; 2 and a mistake in either is fatal to the validity of legal process where no statutory power of amendment exists, un- less there is something in the record to amend by. 3 By statute. But under the statutes of amendment all kinds of misnomer are generally amendable where the change does not result in an unauthorized alteration of the real parties. 4 valid. Poyen v. McNeill, 10 Met. (Mass.) 291. Direction to Attach the Body. If a writ erroneously contain a direction to arrest the defendant, but is served by summons, it may be amended. Harvey v. Cutts, 51 Me. 604, without terms; Clement v. Clement, 18 N. H. 611. See also Turner v. Friend, 59 Me. 290 ; Matthews v. Blossom, 15 Me. 400. Inserting Defendant's Name. Where the writ directed the officer to " attach the goods or estate of , and for want thereof to take the body of the said W. D.," it was held amendable by inserting the defendant's name in the blank space. McGuire v. Davis, 8 Cush. (Mass.) 356. 1. Cases cited in the preceding notes. In Anthony v. Beebe, 7 Ark. 447, it was held that an amendment could not be made after a plea in abatement filed on account of the defect. But that case is overruled by Mohr v. Sherman, 25 Ark. 7. See also infra, V., 5. 2. Barber z/. Smith, 41 Mich. 138. 3. Crafts v. Sikes, 4 Gray (Mass.) 194. See also Final v. Backus, 18 Mich. 218; Albers v. Whitney, I Story (U. S.) 310; Lake v. Morse, n 111. 587. In Thanhauser v. Savins, 44 Md. 410, the plaintiff having declared in the name of " B. Savins" was not allowed to amend by inserting "Ben- jamin Savins," his full name, the Maryland statute providing only for amendment in case of misnomer of a defendant. In Furniss v. Ellis, 2 Brock. (U. S.) 14, a mistake in the name of one of the plaintiffs was amended by the prse- cipe. 4. Final v. Backus, 18 Mich. 218; Elliott v. Clark, 18 N. H. 422. Massachusetts. A writ against 663 Charles Langmaid actually served upon Chase Langmaid was amended, after default of the defendant and without notice to Chase, by substituting Chase for Charles. Langmaid v. Puffer, 7 Gray (Mass.) 378. In Crafts v. Sikes, 4 Gray (Mass.) 194, a writ sued out in the name of Justus Crafts was amended by substi- tuting therefor the name of Justus Stark. In Wight v. Hale r 2 Cush. (Mass.) 486, "Wight" was substituted for "Wright," as the name of one of the plaintiffs, without affecting the attach- ment. In Diettrich v. Wolffsohn, 136 Mass. 335> a writ against "William Robin- son " was amended by inserting the words "otherwise called William J. Robinson " without affecting the lien of an attachment. An amendment of a writ of attach- ment by changing the name of the plaintiff from " Mary Cain " to " Ann Cain " does not vacate an attachment of funds in the hands of a person sum- moned as trustee so as to give an assignment to a third person, made before the amendment, priority over the attachment. Cain z/. Rockwell, 132 Mass. 193. Indiana. Misnomer of the plaintiff was held to be amendable in Wood- ward v. Wous, 18 Ind. 296, provided the real plaintiff is not changed. In Nimmon v. Worthington, i Ind. 376, the writ was amended by insert- ing the plaintiff's Christian name so as to conform to the praecipe. And in Beck v. Williams, 5 Blackf. (Ind.) 374, by changing the plaintiff's surname, the same being right in the praecipe. In Weaver v. Jackson, 8 Blackf. (Ind.) 5, misnomer of the defendant's Christian name was corrected by amendment after plea in abatement. A like amendment was allowed in Of Proces. AMENDMENTS. Of Writ or Summons. Inserting Christian Names. It has been held that a writ in favor of persons whose surnames only were given in the writ, but who were otherwise identified on the face of the process, could be amended by inserting the full names of the plaintiffs. 1 Shackman v. Little, 87 Ind. 181, after a motion to quash the summons. In Haines v. Bottorff, 17 Ind. 348, the Christian name of the plaintiff in the summons was amended by the complaint. In Chicago, etc., R. Co. v. Johnston, 89 Ind. 88, misnomer of the defendant corporation v r as amended. New York. Misnomer of the defend- ant was amended in Evoy v. Express- men's Aid Soc. (Supreme Ct.), 21 N. Y. Supp. 641. In Reilly v. World Pub. Co. (Supreme Ct.), 14 N. Y. St. Rep. 390, misnomer of the defendant was amended after his appearance. Where a summons was issued in the name of a copartnership instead of a corporation, there being a manifest mistake, it was amended on motion after judgment. Thurber-Whyland Co. v. Klittner (Supreme Ct.), 16 N. Y. Supp. 828. In Brace v. Benson, 10 Wend. (N. Y.) 214, mesne process in a justice court, the Christian name of one of the plaintiffs was amended from "Joseph "to " Jasper." Georgia. Misnomer of the defend- ant was amended in Baldwin v. Mc- Michael. 68 Ga. 828. Misnomer was amended by the in- dorsement in Smith v. Morris, 29 Ga. 339- Misnomer of the plaintiff was amended in Scudder v. Massengill, 88 Ga. 245. North Carolina. Misnomer of the de- fendant was amended in Lane v. Sea- board, etc., R. Co., 5 Jones (N. Car.) 25- In process of attachment the de- fendant was described as " C. E. Thorburn" and " Charles E. Thor- burn;" his full name was substituted by amendment. Hall v. Thorburn, Phill. (N. Car.) 158. Michigan. Misnomer of the plaintiff was amended in Final v. Backus, 18 Mich. 218, a well-considered case. Misnomer of the defendant in re- plevin was amended in Parks v. Bark- ham, i Mich. 95. In Other States West Virginia. Misnomer of the plaintiff's Christian name was amended in Hoffman v. Dickinson, 31 W. Va. 142. Wisconsin. Misnomer of a garnishee was amended in Bushnell v. Allen, 48 Wis. 460, the process having been properly served upon the real gar- nishee, who appeared and answered. Where the defendant was described as the " W. S. Railway Co." instead of the " W. S. Railroad Co." an amend- ment was allowed. Parks v. West Side R. Co., 82 Wis. 219, a case pre- cisely like Chicago, etc., R. Co. v. Johnston, 89 Ind. 88. Nebraska. Misnomer of the plain- tiff's Christian name was amended in Martin v. Coppock, 4 Neb. 173. Ohio. In Burton v. Buckeye Ins. Co., 26 Ohio St. 467, a suit against a corporation, where the name of an- other corporation was inserted in the summons by mistake, an amendment was allowed by substituting the real defendant, who had entered a general appearance, the mistake being evident from the indorsement and entitling of the summons. Misnomer of the plaintiff's Christian name was held not to be amendable in Lyons v. Donges, i Disney (Ohio) 142, where it was said to be different be- fore the Code. Tennessee. In Jones v. Miller, I Swan (Tenn.) 319, process issuing from a justice of the peace, the surname of the plaintiff was omitted and supplied by amendment. New Hampshire. Misnomer of a corporation defendant was corrected in Burnham v. Savings Bank, 5 N. H. 573- Texas. In Tryon v. Butler, 9 Tex. 553, misnomer of a plaintiff was held curable by amendment where the de- fendant failed to appear after being duly served. Illinois. After appearance by the defendant, a misnomer of the Chris- tian name of the plaintiff was amended. Moss v. Flint, 13 111. 570. Vermont. Misnomer of a defendant corporation was amended after ap- pearance in Hosford v. New York, etc., R. Co., 47 Vt. 533. 1. Barber v. Smith, 41 Mich. 138, dis- tinguishing Smith v. Canfield, 8 Mich. 664 Of Process. A MENDMENTS. Of Writ or Summons. The Want of an Appearance by the defendant does not deprive the court of the power to make such amendments if process has been legally served upon him. 1 Eetroactive Effect. The amendment of a summons by correcting a misnomer of the plaintiffs relates back to the time of service. 2 /.IN RESPECT OF PARTIES. A Misdescription of a party 3 , or of the character in which he sues or is sued, may be amended where the real parties remain the same. Thus the plaintiff may amend by striking out the representative capacity in which he being served and before the 493. See also Bentley v. Smith, 3 Cai. (N. Y.) 170; Pate v. Bacon, 6 Munf. (Va.) 219; Totty v. Donald, 4 Munf. (Va.) 430; Barnett v. Watson, i Wash. (Va.) 372. Use of Partnership Name. In Martin v. Godwin, 34 Ark. 682, it was held that a summons against several part- ners in the partnership name may be amended by inserting the names of the individual partners. Michigan Comp. Laws, 5307, per- mits a partnership suit to be instituted in the firm name if the names of the partners are not known, and allows an amendment at any time before the pleadings are closed by inserting the names of the partners. It was held that this statute can apply only in cases of actual partnership; and where a writ of replevin was issued in a partnership name and the amend- ment showed that there was only one plaintiff, the action failed. Stirling v. Heintzman, 42 Mich. 449. 1. Langmaid v. Puffer, 7 Gray (Mass.) 378, and Chicago, etc., R. Co. v. Johnston, 89 Ind 88. in both of which cases a misnomer of the de- fendant was cured by amendment. Contra. In Atwood v. Landis, 22 Minn. 358, the defendant was named William A. Landers in the summons. No appearance was entered, and an amendment was allowed by changing his name to William A. Landis. It \vas held that the judgment rendered therein was void. The same ruling was made in McGill v. Weil (Co. Ct.), 10 N. Y. Supp. 246. See also Farnham v. Hildreth, 32 Barb. (N. Y.) 277. 2. Martin v. Coppock, 4 Neb. 173. 3. Charging Partners Individually. In Johnson v. Somerville Dyeing, etc., Co., 15 Gray (Mass.) 216, it was held that a writ against a manufacturing corporation summoning in two per- sons under the Mass. Stat., 1851, c. 315, as copartners might be amended by charging them individually, both of them court. Striking Out Allegation of Partnership. In Babcock v. Fowles, 32 Me. 592, the plaintiffs were allowed to amend by striking out the averments that they were partners in trade. Charging Estate of Intestate. Where a writ describes the defendant as ad- ministrator, but declares against him personally, and the verdict is that the defendant's intestate promised, it is proper to allow an amendment to sup- port the verdict. Perkins v. Hix (Me., 1888), 13 Atl. Rep. 131. Suits By or Against Corporations. In Barnet v. School Directors, 6 W. & S. (Pa.) 46, where a pracipe and writ were in the individual names of public officers when they should have been sued in the name of the corpora- tion, an amendment was allowed. In Lebanon v. Griffin, 45 N. H. 558, a writ in favor of "the inhabit- ants of the town of L." was held to be amendable so as to describe the cor- poration properly. In a suit against a corporation the writ commanded the officer to sum- mon "the proper officer of" the cor- poration, and it was held to be amend- able by striking out the words quoted. Stone v. Travelers' Ins. Co., 78 Mo. 655- Place of Residence. In Patten v. Starrett, 20 Me. 145, it was held that a misdescription of the place of resi- dence of a defendant in a writ was curable by amendment. And the description or addition of the plaintiff may be amended. Gooch v, Bryant, 13 Me. 386. Suit by Assignee. In Thompson v. Malone, 13 Rich. (S. Car.) 252, it was held that in an action by the as- signee on a non-negotiable note the plaintiff must style himself in the writ assignee of the payee, and if he does not he cannot amsnd, for there is nothing to amend by. 665 Of Process. AMENDMENTS. Of Writ or Summons. sues. 1 An infant suing in his own name may amend by in- serting the name of a guardian or next friend. 3 A 'writ against a defendant individually may be amended so as to charge him in the capacity of an administrator; 3 and a writ against a defendant as executor may be amended by describing him as surviving executor. 4 Where a defendant who was sued as administrator pleaded in abatement that he was executor in- stead of administrator, the plaintiff was permitted to amend. 5 Entire Omission of Party. But a writ which is not in the name of any plaintiff is not amendable either at common law or by statute. 6 Adding Parties. Under the Codes a summons may be amended by adding a new party or parties. 7 g. THE RETURN TIME OR PLACE. A mistake as to the time or place at which a writ or summons is made returnable may be amended on motion after a general appearance by the defendant; 8 1. First Freewill Baptist Church v. Bancroft, 4 Cush. (Mass.) 281; Metcalf v. Yeaton, 51 Me. 198; Winningham v. Crouch, 2 Swan (Term.) 170; National Ben. Assoc. v. Jackson, 114 111. 533. 2. Blood v. Harrington, 8 Pick. (Mass.) 552, after plea in abatement on account of the defect ; Young v. Young, 3 N. H. 345; Wheeler v. Smith, 18 Wis. 651. 3. Lester v. Lester, 8 Gray (Mass.) '437. See also In re Estate of Soule, 13 Civ. Pro. Rep. (N. Y. Supreme Ct.) 171. 4. Barnes v. Scott, 29 Fla. 285. 5. Randolph v. Barrett, 16 Pet. (U.S.) 138. 6. Jones v. Sutherland, 73 Me. 157. But in Galbreath v. Mitchell, 32 Ark. 278, an action of forcible entry and detainer, the names of the parties were properly set out in the complaint and wholly omitted from the writ, and the plaintiff was permitted to amend. 7. Hancock v. Oxford First Nat. Bank, 93 N. Y. 82; Arthur v. Allen, 22 S. Car. 432; Plemmons v. Southern Improvement Co., 108 N. Car. 614. It was held in North Carolina at an early date, under a statute authorizing amendments of process either in form or substance, that a writ could be amended by adding new plaintiffs, Green v. Deberry, 2 Ired. (N. Car.) 344; but that such amendment could not be made in the appellate court. Wilcox v. Hawkins, 3 Hawks (N. Car.) 84. Something to Amend by. The court has a discretion to allow a writ to be amended by the insertion of the name of a party as defendant, even after plea in abatement for want of proper parties, the name being sug- gested in the plea. Coombs v. Low, R. M. Charlt. (Ga.) 395. Necessitates Amendment of Complaint. Where new parties are brought in by amendment of the complaint the summons must be amended accord- ingly; otherwise the amended com- plaint may be struck out on motion, and such motion may be made by the original defendant. Follower v. Laughlin, 12 Abb. Pr. (N. Y.) 105. Striking Out Parties. In Pickett v. King, 4 N. H. 212, it was held that a writ of entry could not be amended by striking out one of the defendants. Compare Chadbourne v. Rackliff, 30 Me. 354- In Maine an amendment of a writ by striking therefrom one or more of several plaintiffs will not be allowed, especially where the relations of the parties and the character of the claim have not been changed since the suit was brought. Roach v. Randall, 45 Me. 438. Compare Treat v. Strickland, 23 Me. 234; Chadbourne v. Rackliff, 30 Me. 354. Leave to amend by striking out the name of a party will be refused where the writ would be defective after the amendment. Jones v. Sharpton, 7 Rich. (S. Car.) 343. 8. Lawrence v. Chase, 54 Me. 196; Ames v. Weston, 16 Me. 266; Barker v. Norton, 17 Me. 416, where the writ was made returnable on the fourth Tuesday of the month, the court being holden on the first Tuesday. Guptill v. Home, 63 Me. 405; Pattee v. Lowe, 35 Me. 121, holding that a plea of the 666 Of Process AMENDMENTS. Of Writ or Summons. and, according to some of the authorities, even after a special general issue. waives the defect; Dun- kle v. Elston, 71 Ind. 585, a summons, but properly indorsed; Harrison v. Agricultural Bank, 2 Smed. & M. (Miss.) 307 ; Wellover v. Soule, 30 Mich. 481; Jackson v. McLean, oo N. Car. 64; Cheatham v. Crews, 8l N. Car. 343; Thomas v. Womack, 64 N. Car. 65", Fisher v. Collins, 25 Ark. 97. In Covington v. Cothrans, 35 Ga. 156, an attachment returnable to the "inferior" court was amended by in- serting the word "county " instead of " inferior." In Pitcher v. Pierce, 2 Cow. (N. Y.) 586, a certiorari returnable out of term, but returned by the justice, was amended. In Simmons v. Norfolk, etc., Steam- boat Co. (N. Car.),i6 S. E. Rep. 117, it was held that where a summons in a special proceeding was improperly made returnable to the superior court in term, the court could remand the proceedings with directions to amend by making the summons returnable before the clerk on a day certain. See also Cheatham v. Crews, 81 N. Car. 343- Writ Returnable on Sunday. Where a writ is made returnable on Sunday it may be amended if the defendant appears. Norton v. Dover, 14 Fed. Rep. 106, decided in the United States Circuit Court for New Hampshire, but controlled by the federal statute of amendments. In McEvoy v. School Dist. No. 8, 38 N. J. Eq. 420, a subpoena to answer a bill in equity was made returnable on Sunday, but was served the required number of days before the return day. The defendant did not appear, and the plaintiff was permitted to amend by making the subpoena returnable on the following Monday, and a decree pro confesso was sustained. Wrong Place. Where a writ was by mistake made returnable at Salem in- stead of Ipswich, and before the expi- ration of the time of service the plain- tiff caused the defendant to be notified of the mistake and to be served with a new summons in which the mistake was corrected, and the action was le- gally entered, it was held that the writ might be amended. Kimball v. Wil- kins, 2 Cush. (Mass.) 555. A summons issued by the clerk of the circuit court of Lowndes county, with the county of Lowndes inserted in the margin, was held sufficient to support a judgment by default when the body of the summons recited that the defendant was required "to ap- pear at the next term of the circuit court of Montgomery " to be held for said county at the place of holding the same, the words "of Montgom- ery " being treated as surplusage. Relfe -v. Valentine, 45 Ala. 286. Mesne Process Against the Body re- turnable out of term was held not to be amendable in Miller v. Gregory, 4 Cow. (N. Y.) 504. See also Kelly v. Gilman, 29 N. H. 385. Something to Amend by. In Dean v, Swift, ii Vt. 331, the writ contained a wrong return day, but was returnable to the right term, and thecourt allowed an amendment on the ground that there was something to amend by. In Mossman v. Higginson, 4 Dall. (U. S.) 12, a writ of error regularly at- tested with a blank for the return day was amended where the term to which it was returnable and the time when it was filed in the court below appeared by indorsement on the writ. A declaration prayed for process re- quiring the defendant to appear at the August term. The process attached was dated July 16, and required the defendant to appear at the court next to be holden " on the first Tuesday in July " in the same year. The de- fendant appeared at the regular term on the first Tuesday of August and moved to dismiss. The plaintiff was allowed to amend. Richmond, etc., R. Co. -v. Benson, 86 Ga. 203. Conflicting Authorities. A writ tested on the I2th of May and made returna- ble on the I7th of May next was held to be a nullity and not amendable. Bunn v. Thomas, 2 Johns. (N. Y.) 190. In Wood v. Hill, 5 N. H. 229, it was held that a writ returnable upon a day. out of term was void and could not be amended. See the comments on this case in Norton v. Dover, 14 Fed. Rep. 106. In Hoxie v. Payne, 41 Conn. 539, where the year of the return term was wrong, it was held that the defect was not amendable, as the court had no jurisdiction. In Kyles v. Ford, 2 Rand. (Va.) i, it was held that a scire facias returnable to a day which was not a proper re- turn day was void and could not be amended. 667 Of Process. AMENDMENTS. Of Writ or Summons. appearance by the defendant solely for the purpose of moving to quash the process on account of the defect. 1 But if the defend- ant does not appear, it has been held that the court acquires no jurisdiction over the person and has no authority to allow an amendment in the return day or term. 2 h. THE AD DAMNUM. A writ in which the amount of the plaintiff's damages is wholly omitted may be amended by leave of the court by filling the blank with the proper sum. 3 And where the court to which the writ is returnable has jurisdiction of the parties and the subject-matter, and the ad dainmnn is for an amount exceeding the jurisdiction of the court, it may be amended by making the necessary reduction. 4 Under similar conditions the ad damnum may be increased by amendment. 5 i. THE TESTE fc General. The general rule is that the teste in process is matter of form only and may be amended. 6 1. Hamilton v. Ingraham, 121 Mass. 562, where the word "current" was substituted for the word " next." See also People v. Brotherhood of Station- ary Engineers, 19 Civ. Pro. Rep. (N. Y. Supreme Ct.) 175 ; Jones v. Williams, 4 Hill (N. Y. ) 34, a capias adrespondcndum returnable at the wrong place; Mc- Iniffe v. Wheelock, i Gray(Mass.) 600. 2. Bell v. Austin, 13 Pick. (Mass.) 90; Brainard v. Mitchell, 5 R. I. in, where the writ was made returnable to a term to be holden on the second Monday of February, the regular term beginning on the third Monday of February. The foregoing cases were distin- guished from those where there was no appearance in Norton v. Dover, 14 Fed. Rep. 106. Contra. See McEvoy v. School Dist. No. 8, 38 N. J. Eq. 420, cited in the last note but one. 3. Cragin v. Warfield, 13 Met. (Mass.) 215; Lamphere v. Cowen, 42 Vt. 175; Flanders v. Atkinson, 18 N. H. 167, an excellent case in view of the conflicting authorities cited below; State v. Hood, 6 Blackf. (Ind.) 260, and Campbell v. Chaffee, 6 Fla. 724, where it was amended by the praecipe. Contra. Where the amount of the ad damnum determines the jurisdiction of the court and is wholly omitted, it has been held that the court has no authority to amend it. Hoit v. Molony, 2 N. H. 322; Deveau v. Skidmore, 47 Conn. 19. These cases were distin- guished in Campbell v. Chaffee, 6 Fla. 724, and Eaton v. Case, 17 R. I. 429. In regard to amendment of the ad 240. 4. Hart v. Waitt, 3 Allen (Mass.) 532; Converse v. Damariscotta Bank, 15 Me. 431. See also Holloway v. School Dist. No. 9, 62 Mich. 153. A writ brought in the police court with the ad damnum beyond its juris- diction cannot be amended in the court of common pleas on appeal. Mc- Quade v. O'Neil, 15 Gray (Mass.) 52, where the court refrained from decid- ing whether it could have been amend- ed in the police court. 5. Danielson v. Andrews, I Pick. (Mass.) 156; Messervey v. Beckwith, 41 111. 452, amended by the praec- ipe. See also Fowlkes v. Webber, 8 Humph. (Tenn.) 530; Thompson v. Turner, 22 111. 389; Richmond, etc., R. Co. v. Rudd, 88 Va. 648; Ellis v. Ridgway, i Allen (Mass.) 501; State v. Broughton, 7 Ired. (N. Car.) 96. In Deane v. O'Brien, 13 Abb. Pr. (N. Y. Super. Ct.) n, the ad damnum was increased, the cause of action being single and entire, although the effect was to defeat the statute of limitations as to the additional claim. After Verdict. In Porteous z/.Givens, 2 McCord (S. Car.) 49, the ad damnum was increased so as to cover the t?r- dict. Where a verdict was rendered for more than the amount claimed in the writ in a case where the measure of damages was certain and there was no sure criterion by which to show a mistake or misapprehension, it was held improper tp allow an amendment of the writ by increasing the damages. Ashe v. Derosset, 8 Jones (N. Car.) damnum in the declaration or com- plaint, see supra, III, 10. 6. Reynolds v. Damrell, 19 N. H. 394; Ripley v. Warren, 2 Pick (Mass.) 668 Of Process. AMENDMENTS. Of Writ or Summons. Name or Style. A mistake in the name or style of the authority in whose name the process is tested may be corrected by amend- ment. 1 Place of Teste. A mistake as to the place at which the process was tested is amendable. 8 The Date of the process may be amended. 3 signature. The omission of the signature to an original writ by the clerk of the court is a defect which may be amended, 4 even where the constitution requires that all process shall be so signed. 5 And where the clerk of a court by mistake signed a writ returnable to that court as "deputy clerk," he was allowed to amend after plea in abatement by annexing to his signature the word "clerk." 6 The signature of an attorney to a summons may also be amended. 7 592; Converse v. Damariscotta Bank, 15 Me. 431. It was held in Andrews v. Ennis, 16 Tex. 45, that the omission by the clerk of the attestation clause in a citation was a mere formal defect and curable by amendment. 1. Harris v. Jenks, 3 111. 475; Con- verse v. Damariscotta Bank, 15 Me. 431- A capias ad respondendum may be amended by correcting the teste as to the name of the chief justice, by sub- stituting the name of another chief justice who was then in office. Brown v. Aplin, I Cow. (N. Y.) 203. In Converse v. Damariscotta Bank, 15 Me. 431, an amendment was al- lowed where the writ was tested in the name of a judge who had re- signed. Likewise in Reynolds v. Damrell, 19 N. H. 394. A summons issued out of the United States District Court and bearing the seal of that court but the teste of the chief justice, instead of the district court judge, as required by U. S. Rev. Stat., 911, is amendable. U. S. v. Turner, 50 Fed. Rep. 734. 2. Raymond v. Hinman, 4 Cow. (N. Y.) 41, where a capias ad respond- endum was tested at Utica when it should have been tested at Albany. 3. Fay v. Hayden, 7 Gray (Mass.) 41, where the writ was antedated one year Jackson v. Bowling, 10 Ark. 578, where the same error was amended; McGlarren v. Thurman, 8 Ark. 313; Haine* v. McCormick, 5 Ark. 663, and Austin v. Clapp, 5 Tex. 130, where the process was dated on Sunday; Mathews v. Bowman, 25 Me. 157, where the process was not dated. Gardiner v. Gardiner, 71 Me. 266; Bray v. Libby, 71 Me. 276; Mclniffe v. Wheelock, i Gray (Mass.) 600; Huss v. Central R. & B. Co., 66 Ala. 472. A writ may be amended by altering its date to a subsequent date, although prior to the amendment the action ap- peared to have been commenced be- fore the cause of action accrued. Bragg v. Greenleaf, 14 Me. 395. A writ of certiorari may be amended by inserting the date. Jackson v. Crane, i Cow. (N. Y.) 38; Brink v. Fulton, i Cow. (N. Y.) 41. See also Bartholemew v. Chautauqua County Bank, 19 Wend. (N. Y.)99; Parkman v. Crosby, 16 Pick (Mass.) 297. Com- pare Lynch v. Mechanics' Bank, 13 Johns. (N. Y.) 127; Ellis v. Ewbanks, 4 111. 190. Mesne process against the body tested out of term cannot be amended. Chandler v. Brecknell, 4 Cow. (N. Y.) 49. But see People v. New York, 18 Wend. (N. Y.) 675; Parke v. Heath, 15 Wend. (N. Y.) 301. 4. Austin v. Lamar F. Ins. Co., 108 Mass. 338; Pepoon v. Jenkins, Col. & Cai. (N. Y.) 60. See also Norton v. Dow, 10 111. 459. 5. Austin -v. Lamar F. Ins. Co., 108 Mass. 338. 6. Johnson v. Nash, 20 Vt. 40. 7. Amendment of Summons After Judg- ment. Where a summons in an action is signed by the firm name of two at- torneys who are in partnership, and the complaint served with the sum- mons is signed with the individual name of one of such attorneys only, and all subsequent notices and papers in the action are signed by such indi- 669 Of Process. AMENDMENTS. Of Writ or Su'amot*. J. BY AFFIXING A SEAL. At common law a writ issuing from a court must, in order to be considered as regular and authentic, be attested by the seal of the court from which it issues. 1 Some of the cases hold that a writ lacking the seal of the court is ab- solutely void ; 8 but the omission has been more generally regarded as a defect merely which is curable by amendment. 3 k. AMENDMENT OF SCIRE FACIAS. By the ancient practice it was considered that a scire facias was not in general amendable. 4 But it is now the practice to allow the writ and declaration to be amended even after plea of mil tiel record? or after error vidual name, the court has power after judgment to amend the summons by substituting the individual name of the attorney. Sluyter v. Smith, 2 Bosw. (N. Y.) 673. Amending Old Summons. Where a summons signed by a nonresident attorney was set aside, it was not prejudicial to the defendant to allow the summons to be amended and served anew, with the signature of resident attorneys thereto. Prentice v. Stefan, 72 Wis. 151. 1. Williams v. Vanmetre, 19 111. 293; State v. Flemming, 66 Me. 142; Wheaton v. Thompson, 20 Minn. 196; Reeder v. Murray, 3 Ark. 450; JEtna Ins. Co. v. Hallock, 6 Wall. (U. S.) 556; Jones v. Frost, 42 Ind. 543; Hin- ton v. Brown, I Blackf. (Ind.) 429; Sanford v. Sinton, 34 Ind. 539; State v. Davis, 73 Ind. 359. 2. Original writs lacking a seal were held not to be amendable in Witherel v. Randall, 30 Me. 168 ; Bailey v. Smith, 12 Me. 196, Tibbetts v. Shaw, 19 Me. 204, and Witherel v. Randall, 30 Me. 168, where the writ bore the seal of the wrong court; Hall v. Jones, 9 Pick. (Mass.) 446. In Shaffer v. Sandwall, 33 Iowa 579, it was held that a writ of attachment issuing from one court, with the seal of a different court impressed thereon, could not be amended. And in Foss v. Isett, 4 Greene (Iowa) 76, the want of a seal to a writ of attachment was held incurable. But see Murdough v. Pherrin, 49 Iowa 479, decided after a change in the statute. 3. Potter v. Smith, 7 R. I. 55, dis- approving the Maine and Massachu- setts cases cited in the preceding note and citing Foot v. Knowles, 4 Met. (Mass.) 386, as indicating that in the latter state the earlier cases therein decided would not be followed. Clark v. Hellen, i Ired. (N. Car.) 421 ; Henderson v. Graham, 84 N. Car. 496; Jump v. Batton, 35 Mo. 193; Strong v. Catlin, 3 Pin. (Wis.) 121; Cartwright v. Chabert, 3 Tex. 261. Indiana. The Indiana Rev. Stat., 1876, p. 49, provides that "no summons or service shall be set aside or be ad- judged insufficient where there is suffi- cient substance about either to inform the party on whom it may be served that there is an action instituted against him in court." Under that statute it was held that after judgment and the term passed a summons sufficient in substance could be amended mine pro tune by affixing the seal of the clerk. State v. Davis, 73 Ind. 359. The same amendment was allowed in Boyd v. Fitch, 71 Ind. 306; Hunter v. Burnsville Turnpike Co., 56 Ind. 213, after a judicial sale of property on a writ not attested by the seal of the court. Mississippi. Under the Mississippi Code of 1871, 712, a writ issued with- out a seal was held to be amendable. Spratley v. Kitchens, 55 Miss. 578. New York. In People v. Steuben, 5 Wend. (N. Y.) 103, where the seal at- tached to a certiorari was not the seal of the court out of which the writ issued, an amendment by affixing the right seal was allowed. In Jackson v. Brown, 4Cow. (N. Y.) 550, a venue for the circuit was amended by adding a seal. 4. 2 Tidd Pr. 1036; Johnston v. Hub- bell, Wright (Ohio)6g; Condit v. Greg- ory, 21 N. J. L. 429. In Vavasor v. Baile, i Salk. 52, and in Hillier v. Frost, i Str.4oi, such motions were denied. See also Kyles v. Ford, 2 Rand. (Va.) i. 5. Condit v. Gregory, 21 N. J. L. 429; Williams v. Lee, Term (N. Car.1 146; White v. Stanton, 3 Jones (N. Car.) 41; Pounds v. State, 60 Miss. 670 Of Process. AMENDMENTS. Of Writ or Summons. brought, 1 so as to conform to the record; 2 and when ^ scire facias is used as a declaration it may be amended in the same way as other pleadings are amended. 3 But a scire facias which issues from a court other than that which has the record is a nullity and cannot be amended so as to read as if it issued from the proper court. 4 /. APPLICATION AND LEAVE TO AMEND Leave Necessary, Process cannot be amended without leave of the court. 5 Waiver of Objection. But an irregularity in serving an amended summons without leave first obtained may be waived by defend- ant's retaining the amended summons, or it may be cured in an- swer to a motion to strike out the amended summons by granting a cross-motion for leave to amend it. 6 925; Smith v. Brisbane I Brev. (S. Car.) 455; Berlin v. Highberger, 104 Pa. St. 143, and Rainey v. Com., 10 Watts (Pa.) 343, where it was amended to conform to the praecipe; Miller v. Hower, 2 Rawle(Pa.) 56; Sweetland v. Beezley, Barnes 4; Perkins v. Pettit, 2 Bos. & Pul. 440; Rex v. Scott, 4 Price 181. See Bucksom v. Hoskins, i Salk. 52, and the cases cited in the next note but one. 1. Burrows v. Heysham, i Dall. (U. S.) 133- 2. Scire facias on a recognizance may be amended so as to recite the date or term of the court at which the judgment nisi was taken. Marx v. State, 61 Miss. 478. Or otherwise to conform to the judgment nisi. Gwynn v. State, 64 Miss. 324; Pounds v. State, 60 Miss. 925 ; Sartin v. Weir, 3 Stew. & Port. (Ala.) 421. The Caption may be amended so as to run in the name of the people of the state. McFadden v. Fortier, 20 111. 509. After Jury Sworn. After the jury were sworn the court permitted the writ to be amended to avoid a vari- ance between it andUhe record of the recognizance. State^/.ISpicer, 4 Houst. (Del.) loo. See also Maus v. Maus, 5 Watts (Pa.) 315; Whitworth v. Thomp- son, 8 Lea (Tenn.) 480. 3. Johnston v. Hubbell. Wright (Ohio) 69 ; Jackson v . Tanner, 18 Wend. (N. Y.) 526; Peacock v. People, 83 111. 331; Lowry v. Newson, 51 Ala. 570; Orput v. Hardy, 6 Blackf. (Ind.) 456; Berry v. McDonald, 7 Blackf. (Ind.) 371; Clark v. Perkins, 3 N. H. 339. See Willink v. Renwick, 22 Wend. (N. Y.) 608, where the plain- tiff was not permitted to amend by adding new parties after the statute of limitations had attached in their favor; Carter v. Thompson, 15 Me. 464, where an amendment was denied in the exercise of discretion, as also in Farnum v. Bell, 3 N. H. 72. In Phelps z>.Ball,i Johns. Cas. (N.Y.) 31, a scire facias was amended after it had been returned satisfied. 4. Osgood -v. Thurston, 23 Pick. (Mass.) no. 5. Allen v. Allen, 14 How. Pr. (N. Y. Supreme Ct.) 248; Maine Bank v. Hervey, 21 Me. 38; Childs v. Ham, 23 Me. 74. Presumptive Date of Order for Amend- ment. Independently of any showing of the date on which an order for the amendment of process is procured it will be taken to have been on the last day of the term. Burns v. First Nat. Bank, 45 Vt. 269. Not Amendable of Course. The plain- tiff cannot amend a summons of course. Walkenshaw v. Perzel, 32 How. Pr. (N. Y. Super. Ct.) 310; Dib- lee v. Mason, i Code Rep. (N. Y.) 37; McCrane v. Moulton, 3 Sandf. (N. Y.) 736; Follower v. Laughlin, 12 Abb. Pr. (N. Y. Supreme Ct.) 105; Billings v. Baker,.6 Abb. Pr. (N. Y. Supreme Ct.) 213; Russell v. Spear, 5 How. Pr. (N. Y. Supreme Ct.) 142, 3 Code Rep. (N. Y.) 189. Amendment by Another Court. Leave to amen9 original process issued out of the Circuit Court will not be granted in the Supreme Court. Hildreth v. Hough, 19 111. 403; Ellis v. Ewbanks, 4 111. 190. 6. Mapes v. Brown. 14 Abb. N. Cas. (N. Y. Supreme Ct.) 94. Failure to Take Proper Objection. In Bray v. Libby, 71 Me. 276, it was 671 Of Process. AMENDMENTS. Of Executions. Leave Discretionary. The allowance or refusal of leave to amend process is discretionary with the trial court, and will be reviewed only for an abuse of discretion * or where the ruling was based upon an erroneous view as to the power of the court. 3 Notice of Motion. An application for leave to amend a summons should be upon notice, where there has been a general ap- pearance. 3 2. Of Executions TO Conform to Judgment. An execution may be amended to conform to the judgment if it can be so identified with the judgment and the record on which that judgment is founded that the court can find data by which to make the amend- ment. 4 held that the defendant will be held to hav waived his rights depending upon an unauthorized and irregular change of the writ, unless he takes advantage of the same by plea in abatement or when the defects appear of record by motion seasonably filed; and when the defendant thus waives his right the court will not dismiss the writ unless it perceives that justice requires it. See also Maine Bank v. Hervey, 21 Me. 38. 1. Kagay v. School Trustees, 68 111. 75- 2. A refusal of leave to amend a summons on the ground of want of power may be reviewed on appeal. Henderson v. Graham, 84 N. Car. 496. 3. Hewitt v. Howell, 8 How. Pr. (N. Y. Supreme Ct.) 346. Under Prayer for General Belief. On a motion to add parties defendant and for an injunction and receiver the plaintiff can obtain leave to amend the summons under the general prayer " for such other order or relief as the court shall see fit to grant." Walkin- shaw v. Perzel, 7 Robt. (N. Y.)6o6. Leave Granted on Motion to Quash. It is proper to give leave to amend upon the hearing of a motion to quash for the defect. Shackman v. Little, 87 Ind. 181, where a misnomer was amended. And in Jones v. Williams, 4 Hill (N. Y.) 34, on a motion to set aside a capias ad respondendum, because of its being returnable at a wrong place the plaintiff was allowed to amend with- out a cross-motion for that purpose, and the court said that it was "set- tled practice to allow trifling mistakes of this kind to be amended on the motion to set aside." Without Motion. It was said in Kahn v. Kuhn, 44 Ark. 404, that a mistake in not making the process run in the name of the state ought to be corrected by the court without a motion. 4. Dewey v. Peeler (Mass., 1894), 36 N. E. Rep. 800; Fries v. Woodworth, 31 N. J. L. 273 ; Black v. Wistar, 4 Dall. (U. S.)267; Sanders v. Kentucky Ins. Co., 4 Bibb (Ky.) 471, where the execution issued for one cent more than the judgment; Kentucky Bank v. Lacy, i T. B. Mon. (Ky.) 7; Johnston v. Lynch, 3 Bibb (Ky.) 334; Bender v. Askew, 3 Dev. (N. Car.) 150; Holmes v. Williams, 3 Cai. (N. Y.) 98, a ca. sa. in which the costs were larger than the amount actually entered ; Tasker v. Wallace, 6 Daly (N. Y.) 364,after the execution had been served and returned; De Lancey v. Piepgras (Supreme Ct.), 26 N. Y. Supp. 806; Hall '.Clagett,63 Md. 57, a venditioni exponas amended to conform to the record; Jones v. Dove, 7 Oregon 467, after a sale on the execution; Andress v. Roberts, 18 Ala. 387; Sheppard v. Mel- loy, 12 Ala. 561; McCollum v. Hub- bert, 13 Ala. 282; Goodman v. Walker, 38 Ala. 142, by striking out the name of a defendant; Hunt v. Loucks, 38 Cal. 372; Durham v. Heaton, 28 111. 264, and Lewis v. Lindley, 28 111. 147, the two cases last cited holding it to be amendable after as well as before a sale, where the execution called for too much money; Vogtw, Ticknor, 48 N. H. 242; Jones v. Parker, 60 Ga. 500; Gross v. Mims, 63 Ga. 563; Saf- fold v. Wade, 56 Ga. 174; Lamar v. Grier, 3 Ga. 121 ; Smith v. Keen, 26 Me. 411 ; Caldwell v. Blake, 69 Me. 458; Corthell v. Egery, 74 Me. 41; Chase v. Gilman, 15 Me. 64; Sil- ner v. Butterfield, 2 Ind. 24, holding 67: Of Process. AMENDMENTS. Of Executions. The execution may be thus amended so as to conform to a judgment which has been amended. 1 To Conform to Prsecipe. In like manner an execution may be amended by the praecipe. 3 The Caption of an execution is amendable. 3 Direction. An error in the direction may be amended. 4 that a justice of the peace has power to amend an execution issued by him; Hutchens v. Doe, 3 Ind. 528; Tatem v. .Potts, 5 Blackf. (Ind.) 534; M'Call v. Trevor, 4 Blackf. (Ind.) 496; Doe v. Rue, 4 Blackf. (Ind.) 263, where the execution and judgment differed in amount ; Owen v. Simpson, 3 Watts (Pa.) 87; Mohn v. Heister, 6 Watts (Pa.) 53- Error in Name. An error in the name of the plaintiff in an execution, there being enough in the record to amend by, may be corrected after a delivery bond taken in the proper name and execution issued on it. Kentucky Bank v. Lacy, i T. B. Mon. (Ky.) 7. In Tasker v. Wallace, 6 Daly (N. Y.) 364, an error in the name of a party was corrected in the judgment and a corresponding change then made in the execution after it had been served and returned. In Porter v. Goodman, i Cow. (N. Y.) 413, a _fi. fa. was cor- rected by adding the name of a party. In Gross v. Mims, 63 Ga. 563, an error in the Christian name of the de- fendant was amended. Also in Vogt v. Ticknor, 48 N. H. 242, not followed in Battle v. Guedry, 58 Tex. in) where it was held that an execution against J. B. Clements was not sup- ported by a judgment against J. P. Clements, and that a sale under the execution did not pass title. The case last cited was not approved in Morris v. Balkham, 75 Tex. in. In Andress v. Roberts, 18 Ala. 387, an execution was amended by striking out the name of a person not a party to the judgment, the change being also held not to affect the lien. To Correct a Mistake. In New York an execution inadvertently issued for too small an amount by failing to in- clude interest may even after satisfac- tion and return be amended so as to include interest, 723 of the Code de- claring that the court may on the trial or any other time before or after judg- ment amend any process, pleading, or proceeding by correcting a mistake. i Encyc. PI. & Pr. 43. 6 Kokomo Strawboard Co. v. Inman, 67 Hun (N. Y.) 648, 21 N. Y. Supp. 705. Void Execution Nothing to Amend By. An execution issued out of the cir- cuit court upon a judgment recovered in the Court of Common Pleas is abso- lutely void and cannot be amended in the common pleas. Clarke v. Miller, 18 Barb. (N. Y.) 269. Mistake in Sheriff's Deed. The execu- tion being a record of the court may be amended, but a mistake in the sher- iff's deed being matter in pais cannot be amended. Murphy v. Price, Cheves (S. Car.) 14. 1. De Lancey v. Piepgras (Supreme Ct.), 26 N. Y. Supp. 806; Tasker v. Wallace, 6 Daly (N. Y.) 364. See also Jones v. Parker, 60 Ga. 500; Gross v. Mims, 63 Ga. 563. 2. In Shoemaker v. Knorr, iDall. (U. S.) 197, the testeand return of an alias venditioni exponas were amended by the praecipe. Venditioni exponas is amendable by the praecipe by inserting the name of one of the defendants during the trial of an ejectment under the sheriff's deed, and a sale under such writ passes the title. Sickler v. Overton, 3 Pa. St. 325. 3. Although the constitution re- quires that all process shall run in the name of the people of the state, yet the insertion of the word "territory" instead of state in an execution was held to be amendable. Carnahan v. Pell, 4 Colo. 190. 4. Benedict, etc., Mfg. Co. v. Thayer, 20 Hun (N. Y.) 547; Cheney v. Beall, 69 Ga. 533, where the execu- tion should have been directed to " all and singular the sheriffs of said state and their lawful deputies," but was directed simply to "all and singular the sheriffs of said state." Omission of Direction. If an execu- tion be executed by one having official power for the purpose, an omission of the direction to the officer may be sup- plied by an amendment. Rollins v. Rich, 27 Me. 557. The omission in a levari facias of Of Process. AMENDMENTS. Of Executions. Eeturn Day, Term, or Place. An error in respect of the return day or term may be amended, 1 or where the execution is returnable at a wrong place. 2 The Teste of an execution may be amended ; 3 and where the testa- tum clause was omitted in a ca. sa. on which the defendant had been taken, the court allowed it to be inserted by amendment. 4 Signature. The want of a signature by the clerk may be cured by an amendment, 5 and the defect will be treated as amended whenever the process is collaterally assailed. 6 Want of Seal. The want of a seal in an execution issued by a court of record 7 does not render it void, and the defect may be cured by amendment. 8 Where an execution is tested on Sunday it is amendable. Williams v. Hogeboom, 22 Wend. (N. Y.)648. The omission in an execution of a teste in the name of a judge of the court or of a direction as to the time of its return may be amended or dis- regarded. Douglas v. Haberstro, 88 N. Y. 611. In Porter v. Goodman, i Cow. (N.Y.) 413, a. Ji. fa. was amended by correct- ing the name of the place at which it was tested after an action of trespass brought for a levy under it. 4. Mclntyre v. Rowan, 3 Johns. (N. Y.)i 4 4. 5. Whiting v. Beebe, 12 Ark. 421. 6. Jett v. Shinn, 47 Ark. 373. 7. A justice of the peace has no au- thority after a sale and return of exe- cution and action commenced against the officer to allow an amendment of an execution by affixing a seal. Toof v. Bentley, 5 Wend. (N. Y.) 276; Por- ter v. Haskell, n Me. 177, which holds that there is a distinction in respect of the power to allow the amend- ment by a justice of the peace and that of courts where process is issued by the clerks; that in the latter case the court orders the clerk to correct his errors, but that in justice courts it is not permissible. 8. Rose v. Des Moines Valley R. Co., 47 Iowa 420; Purcell v. McFarland, i Ired. (N. Car.) 34; Taylor v. Courtnay, 15 Neb. 190; Bridewell v. Mooney, 25 Ark. 524 ; Corwith v. State Bank, 18 Wis. 560; Arnold v. Nye, 23 Mich. 289; Sawyer v. Baker, 3 Me. 29, where the execution was amended after it had been extended on lands and the extent recorded. See also Clark v, Hellen, i Ired. (N. Car.) 42. And the amendment will relate back to the date of the process. Hall v. the command to levy the debt may be amended. Peddle v. Hollinshead, 9 S. & R. (Pa.) 277. After Sale. In Treasurer v. Bor- deaux, 3 McCord (S.Car.) 142, an execu- tion was amended after a sale of lands had been made under it, the usual words of authority to the sheriff hav- ing been omitted. Review in Federal Court. Where a state court has amended an execution by inserting a direction to the proper officer, the ruling will not be reviewed in a federal court. Kent v. Roberts, 2 Story (U. S.) 591. 1. Goode v. Miller, 78 Ky. 235. Where an execution is upon its face returnable at a time anterior to the term to which by law it should have been made returnable, it may be amended; but until amended the se- curity of the deputy sheriff is not liable for money collected on it by such deputy after the day on which it was on its face returnable, and which he has failed to pay over. Forward v. Marsh, 18 Ala. 645. 2. On a motion to set aside a ca. sa. for irregularity, on the groun'd that it was returnable at a wrong place, the court allowed it to be amended with- out giving notice of a cross-motion for the purpose. Inman v. Griswold, i Cow. (N. Y.) 199. 3. Baker v. Smith, 4 Yeates (Pa.) 185, where an erroneous teste in a fi. fa. was amended after it had been executed. Berthon v. Keeley, 4 Yeates (Pa.) 205, where the teste of a yf. fa. was amended by the praecipe; Cherry v. Woolard, i Ired. (N. Car.) 438, where an execution was tested on the wrong day. A fi. fa. tested out of term is not absolutely void, but may be amended. Den v. Lecony, i N. J. L. in. 674 In Attachment Proceedings. AMENDMENTS. In General. Amendment Discretionary. The amendment of an execution so as to cure defects therein is a matter addressed to the sound discretion of the court, and will be allowed or disallowed according as it is or is not in furtherance of justice; 1 and an allowance or refusal will not be reviewed by an appellate court unless in a case of flagrant abuse of discretion, 8 or where the decision was based upon an erroneous view as to the power of the court. 3 Ketroactive Effect of Amendment. An amendment of an execution nunc pro tune makes it as between the parties as if the defect had never existed. 4 Regarded as Amended. When a defect in final process is amend- able it will be regarded as amended in proceedings involving the validity of acts done by virtue of it, unless the rights of third parties have intervened or injustice will be done thereby. 5 V. IN ATTACHMENT PROCEEDINGS 1. In General. Allowing amendments is incidental to the exercise of all judicial power ; and where no local statute or rule of local law is involved, the power to amend is the same in attachment suits as in others. 6 Lackmond, 50 Ark. 113; Taylor v. Courtnay, 15 Neb. 190. 1. Hayford -v. Everett, 68 Me. 505. In Maine the statute requires that an execution against a town shall run against the real estate therein, and against the personal property of its inhabitants. If it is issued only against real and personal property owned by the inhabitants of the town, the land of a nonresident cannot be legally sold thereon. But where the land of a nonresident was sold under an execution running against the in- habitants only, and the owner knew nothing of the sale until it was too late to redeem therefrom, and the value of the land greatly exceeded the price bid for it, and the purchaser and seller could be restored substantially to their former condition if the sale were not upheld, the court refused to allow the execution to be amended so as to run against the land of the non- resident. Hayford v. Everett, 68 Me. 505. See also Cape Fear Bank v. Williamson, 2 Ired. (N. Car.) 147. In Hunt v. Pasman, 4 M. & S. 329, the court refused to allow the plaintiff to amend a fi. fa., because the de- fendant had become a bankrupt be- fore the sale of goods under it was made and the rights of third parties had intervened; but it was intimated that had the application been made earlier, the favor of the court might have been extended to him. Defect in Recital. Where an execu- tion issued against the person of a judgment debtor is defective in that it fails to specify by name the county to which the execution against the property has been issued and returned unsatisfied, the defect may be cured by an amendment under the general provision relating to amendments. 723 of the Code; Walker v. Isaacs, 36 Hun (N. Y.) 233. Amendment of Indorsement. Where after land has been sold under an ex- ecution there is found a discrepancy between the amount indorsed on the execution and the amount really due, such indorsement may be amended. Lane v. Potter (N. J., 1892), 23 Atl. Rep. 420. 2. Lamar v. Grier, 3 Ga. 121. 3. Hayford v. Everett, 68 Me. 505. In McCollum v. Hubbert, 13 Ala. 282, it was held that the refusal of the court to permit a sheriff to amend an execution pending the trial of a cause cannot be assigned for error upon the judgment in the cause; and in Casky v. Haviland, 13 Ala. 314, that if a party is prejudiced by the refusal, his remedy is by mandamus. 4. Adams v. Higgins, 23 Fla. 14; Saffold v. Wade, 56 Ga. 174. It was held in Jones v. Hawkins, 60 Ga. 52, that if a fi. fa. be amended after levy, the levy falls; but that if the order granting leave to amend be not carried out and they?, fa. proceed without amendment, it does not. See also Jones v. Parker 60 Ga. 500. 5. Corthell v. Egery, 74 Me. 41. 6. Tilton v. Cofield, 93 U. S. 163. 675 In Attachment Proceedings. AMENDMENTS. Declaration or Complaint. 2. Of the Declaration or Complaint For the Same Cause of Action. Any proper amendment may be made provided the action be still for the same demand upon which it was brought ; and neither bail, nor receiptors, nor subsequent attaching creditors have any right to complain when the amendment does not in fact prejudice their rights, by increasing the responsibility of bail or receiptors, or tend to diminish the surplus property to which such subsequent attaching creditor may be entitled, according to the conditions of the action at the time of the attachment. 1 See also Page v. Jewett, 46 N. H. 441; Nelson v. Webb, 54 Ala. 436; Gucken- heimer v. Day, 74 Ga. i; Phillips v. Taber, 83 Ga." 565; Christal v. Kelly, 88 N. Y. 285; Muth v. Erwin (Mont., 1894), 36 Pac. Rep. 43; Sweetzer v. Claflin, 82 Tex. 513; Pearce v. Bell, 21 Tex. 688; Tarkinton v. Broussard, 51 Tex. 550; Mendes v. Freiters, 16 Nev. 388; Tully v. Herrin, 44 Miss. 626; McCarn v. Rivers, 7 Iowa 404; Murphy v. Adams, 71 Me. 113; Suksdorff v. Bigham, 13 Oregon 369; Dalton v. Bar- nard, 150 Mass. 473; Townsend Nat. Bank .v. Jones, 151 Mass. 454; Hender- son -v. Stetter, 31 Kan. 56; Crerar v. Milwaukee, etc., R. Co., 35 Wis. 67; Jayne v. Platt, 47 Ohio St. 262; Con- stable v. White, I Handy (Ohio) 44; Hathaway v. Davis, 33 Cal. 168; Ham- mond v. Starr, 79 Cal. 556. Answer byGarnishee. The garnishee should be allowed to amend his an- swer whenever it appears that he has committed a mistake or fallen into an error which could not reasonably be avoided. Smith v. Brown, 5 Cal. 118. In Simon v. Ash, i Tex. Civ. App. 202; Crerar v. Milwaukee, etc., R. Co., 35 Wis. 67; Hennen -v. Forget, 27 La. Ann. 381, and Buford v. Welborn, 6 Ala. 818 in the latter case even after the~:issue had been tried between the plaintiff and one to whom the debt was supposed to have been trans- ferred the garnishee was allowed to amend a defective answer. Application for Writ. An application for a writ of attachment may be amended. Langstaff v. Miles, 5 Mont. 554- 1. Page v. Jewett, 46 N. H. 445; Laighton v. Lord, 29 N. H. 257; Smith v. Brown, 14 N. H. 67; Tilton v. Co- field, 93 U. S. 163. The Rule Restated. In Townsend Nat. Bank v. Jones, 151 Mass. 454, where it was contended that the surety in a bond to dissolve an attachment was discharged by an amendment of the complaint, the court held that "unless the effect of the amendment would be to impose a greater liability than he had originally assumed by letting in a new cause of action, he is not released because of its allowance." The following cases support the same rule : Fairfield v. Baldwin, 12 Pick. (Mass.) 388; Wood v. Denny, 7 Gray (Mass.), 540; Lord v. Clark, 14 Pick. (Mass.) 223; Kellogg v. Kimball, 142 Mass. 124; Doran v. Cohen, 147 Mass. 342 ; Lanahan v. Porter, 148 Mass. 596; Miller v. Clark, 8 Pick. (Mass.) 412; Haven v. Snow, 14 Pick. (Mass.) 33; Ball v. Claflin, 5 Pick. (Mass.) 303; Wentworth -v. Sawyer, 76 Me. 434; Merrick v. Greely, 10 Mo. 106; Wright v. Brownell, 3 Vt. 435. Pending Motion to Dissolve. If the complaint can be made good by amend- ment, the plaintiff should be allowed to amend pending a motion to dissolve the attachment. Hathaway v. Davis, 33 Cal. 168. Amendment of One Count. The amendment of one of two counts in a declaration does not discharge a surety on a bond given to dissolve the attach- ment from liability for the amount sued for in the count not affected by the amendment. Warren v. Lord, 131 Mass. 560. Insufficient Amendment. An allega- tion in an amended petition that the defendants were " then " about to dis- pose of their property with intent, etc., was held insufficient to support a writ of attachment issued at the commence- ment of the action. Wadsworth v. Cheeny, 10 Iowa 257. And in Bundy v. McKee, 29 Iowa 253, it was held that an amendment which does not refer to the time when the action was commenced does not cure a defect of substance therein. See also Crouch v. Crouch, g Iowa 269. 676 In Attachment Proceedings. AMENDMENTS. Declaration or Complaint. Demurrable Complaint. A complaint so defective as to be bad on general demurrer may be amended so as to support the attach- ment where it is accompanied by an affidavit in proper form. 1 New Cause of Action. An amendment introducing a new cause of action should not be allowed. 2 1. Tarkinton v. Broussard, 51 Tex. 550. 2. Furness v. Read, 63 Md. i; Smead v. Chrisfield, i Handy (Ohio) 573; Peck v. Sill, 3 Conn. 157; Green v. Jackson, 66 Ga. 250; and the cases cited in the following notes. Curing defective allegations is not introducing a new cause of action and does not discharge bail. Brown v. Howe, 3 Allen (Mass.) 528. Nor does a merely formal amendment. Lord v. Clark, 14 Pick. (Mass.) 223. Nor the correction of a mere clerical error. Putnam v. Hall, 3 Pick. (Mass.) 445. In Massachusetts an attachment is discharged as to a subsequent pur- chaser by an amendment made with- out notice to him which adds a new cause of action. Freeman v. Creech, 112 Mass. 180. In Texas, where an instrument shows upon its face that it had not matured when suit was brought, the petition may be amended without prejudice to the attachment by alleging its maturity pending the suit. Panhandle Nat. Bank v. Still, 84 Tex. 339. Adding New Count. An amendment adding to a declaration on the money counts a count on a guaranty of a debt of a third person discharges bail. Wood v. Denny, 7 Gray (Mass.) 540. But it was held in the same case that bail are not discharged by allow- ing a declaration on the money counts to be amended by adding counts upon promissory notes which were in fact, though not so appearing on the record, the same cause of action. Com- pare, on the last point, Fairfield v. Baldwin, 12 Pick. (Mass.) 388; Willis v. Crooker, i Pick. (Mass.) 204. In Mendes v. Freiters, 16 Nev. 388, it was held that an amendment chang- ing the form of action merely or ad- ding a new count for the same cause of action would not dissolve the at- tachment as to interveners. Special Contract and Common Count. An amendment to a declaration for use and occupation under a special contract of renting by adding a com- mon count for use and occupation is not a new cause of action. Nelson v. Webb, 54 Ala. 436. Mere Amplification. An amendment merely amplifying the averments in the original complaint does not dis- charge a bond substituted for the attachment. Jaynes -v. Platt, 41 Ohio St. 262. Description of Notes. Plaintiffs in an attachment suit upon several claims described one note as having been "made, executed, and delivered and indorsed to said plaintiffs," and "in- dorsed as follows, to wit, Dreben & Lewis." By amendment the plaintiffs alleged that the note of Dreben & Lewis was made payable to them- selves and was thereafter indorsed by them in blank to Isaac Lewis, and that it was afterward indorsed and de- livered by said Lewis to plaintiffs. The original and amendment contained an accurate description of the note. Upon motion by an intervenor to set aside the attachment, it was held that the amended and original petition were for the same cause of action, and the motion was denied. Svveetzer v. Claflin, 82 Tex. 513. Setting Out Title. Where the com- plaint was based upon a note and ac- count assigned to the plaintiff, but did not set out the assignment and al- leged ownership in the plaintiff, it was held to be amendable. McCarn v. Rivers, 7 Iowa 404. Making more Specific. Amendments which simply make the causes for at- tachment more specific are permis- sible. Gourley v. Carmody, 23 Iowa 212. Defects of Substance. In Natchez First Nat. Bank v. Moss,' 41 La. Ann. 227, it was held, upon a motion to dissolve an attachment and a mo- tion by the plaintiff to amend, that an amendment after issue joined setting forth substantial averments not con- tained in the original pleadings could not be allowed. And in Gordon v. Maureau, 9 La. Ann. 586, it was held that an amend- ment cannot cure a complaint defect ive for want of a prayer for attachment. 677 In Attachment Proceedings. AMENDMENTS. Declaration or Complaint. Title Acquired Pending Snit. If the plaintiff at the date of commenc- ing the suit does not own the claim upon which it is brought, he cannot afterwards purchase the claim and set it up by amendment against the property seized under the attachment. 1 Tort to Contract and Vice Versa. A complaint plainly in tort cannot be changed by amendment into a complaint on contract, 2 nor vice versa. 3 But where a complaint was so indefinite and uncer- tain that it could not be determined whether it was in tort or contract, but the facts alleged were such as would sustain an action on contract, an amendment was allowed and the proceed- ings upheld as against a subsequent attachment. 4 Effect of Improper Amendment. Where an amendment is made which introduces a new and additional cause of action, if in the end judgment be taken only upon the demand originally included in and covered by the first declaration, the attachment will not be dissolved ; 5 but if judgment be taken for the original and new demand, the attachment is vacated, that part of the judgment which is good being vitiated by that which is bad. 6 change of Parties. An amendment by changing some of the parties to the suit does not necessarily affect the attachment. 7 After Trial of Case. Where a right to an attachment under one section of the statute has been determined against the plaintiff he cannot amend his complaint so as to change his ground and retry his case. Jaffray z>. Wolfe, i Okla. 312. 1. Farwell Co. v. Wright, 38 Neb. 445- An amendment will not be allowed on the trial by adding a claim for a debt not due at the commencement of the suit, but due at the time of the pro- posed amendment. Correll v. Geor- gia Const., etc., Co., 37 S. Car. 444. 2. Suksdorff v. Bigham, 13 Oregon 369. 3. Lane v. Beam, 19 Barb. (N. Y.) 51, where it was held that such an amendment would discharge the sure- ties in the bond to dissolve the attach- ment. 4. Suksdorff v. Bigham, 13 Oregon 369- 5. Page v. Jewett, 46 N. H. 441; Seeley v. Brown, 14 Pick. (Mass.) 177. 6. Page v. Jewett, 46 N. H. 446; Fairfield v. Baldwin, 12 Pick. (Mass.) 398; Peirce v. Partridge, 3 Met. (Mass.) 49; Quillen v. Arnold, 12 Nev. 234- Collateral Attack. It was held in Hammond v. Starr, 79 Cal. 556, that an objection that an amendment stated a different cause of action from that declared on in the original complaint could not be urged for the first time in a collateral suit on a bond given to release the attachment. It is perhaps doubtful whether one who purchases property under attach- ment can contest the validity of the lien although a new cause of action was introduced by amendment and judgment rendered thereon. See Til- ton v. Cofield, 93 U. S. 163. 7. Striking Out a Plaintiff. An amendment by striking out the name of a plaintiff improperly joined will not vitiate the attachment. Johnson v. Huntington, 13 Conn. 47. Adding a Defendant. In Christal v. Kelly, 88 N. Y. 285, it was held that the sureties in an undertaking given to discharge an attachment in an action originally commenced against two defendants as copartners to recover on a firm note were liable to pay the judgment subsequently recovered on the note against the original defendants and another per- son, a partner in the firm, who was brought in after plea in abatement. Nominal Change of Parties. In Tully v. Herrin, 44 Miss. 626, where the plaintiff declared in his own name on a chose in action of which he was the equitable owner, he was allowed to amend by adding the name of the person holding the legal title. 678 In Attachment Prceedings. AMENDMENTS. Declaration or Complaint. Misnomer of the Parties may be cured by amendment ;* but not where it would prejudice the rights of third parties acquired in good faith before the amendment was made, and where the mis- nomer was of such a character as to mislead them. 2 increasing Ad Damnum. An amendment increasing the amount claimed will not affect the attachment if the error in stating the amount was merely clerical; 3 but if it does not clearly appear The amendment was held not to in- troduce a new cause of action. An amendment by substituting the names of the real parties for the nominal parties will not discharge the sureties on a bailbond. Phillips v. Taber, 83 Ga. 565. Discontinuing as to One Defendant. If one partner is arrested in a suit against the partnership and gives a bail-bond, the surety thereon is not discharged by a discontinuance of the action as to another partner. Sander- son v. Stevens, 116 Mass. 133. A discontinuance as to one of several defendants will not discharge the obligees in a bond to dissolve the attachment. Dalton v. Barnard, 150 Mass. 473. Striking Out a Defendant. Where the statute allows the name of one of two or more defendants in an action to be struck out, such amend- ment may be made in an attach- ment suit without discharging the re- ceiptor. Smith v. Brown, 14 N. H. 67. Nonjoinder of necessary parties de- fendant may be cured by amendment. Sullivan v. Langley, 128 Mass. 235, holding that the garnishee was not discharged. Misjoinder. In Denny v. Ward, 3 Pick. (Mass.) 199, it was held that an amendment by inserting the name of a party so as to cure a misjoinder will vacate the attachment as against an intervening attaching creditor. Adding a Plaintiff. In Moulton v. Chapin, 28 Me. 505, an action of as- sumpsit, it was held that an amend- ment by adding a coplaintiff dissolved the attachment. Entire Change of Parties. In Quillen v. Arnold, 12 Nev. 234, a change of parties under the circumstances therein set forth was held to con- stitute a new cause of action, and the sureties in an undertaking to dis- solve the attachment were not bound by the judgment. Amendments in Respect of Parties Gen- erally, see supra, III, 5. 1. Barmon v. Clippert, 58 Mich. 377, and Anglo-Amer. P. & P. Co. v. Turner Casing Co., 34 Kan. 340, mis- nomer of the plaintiff. But see Flood z>. Randall, 72 Me. 439, where it was held that an attachment to enforce a lien for wages was lost by an amend- ment changing the Christian name of the plaintiff from Edward to Edmund. A person having funds of S. R. in his hands may be charged as trustee in an action brought originally against S. R. , but after the trustee's answer changed by amendment into an action against " S. R., otherwise called L. R.," and the liability of the trustee is not affected by an assignment by the defendant after the service of the writ and before the amendment. Vermil- yea v. Roberts, 103 Mass. 410. The omission in a complaint and proceedings upon attachment against a corporation defendant of the word "company" from its corporate name is amendable without affecting the at- tachment lien. Hammond v. Starr, 79 Cal. 556. 2. In Terry v. Sisson, 125 Mass. 560, a writ was sued out against S. S., and a savings bank summoned as trustee. The process was in fact served on S. F. S., and was afterward amended accordingly. After service on the bank and before the amend- ment, the bank, acting in good faith and with no notice or knowledge that the person intended to be sued was S. F. S., paid over to the latter the funds in its hands belonging to him. It was held that although the misnomer was curable as between the plaintiff and defendant, the bank was not charge- able as trustee. In Moore v. Davis, 58 Mich. 25, it was held that an amendment in gar- nishment proceedings by substituting Jonathan for John in the name of the principal defendant discharged the attachment as against an inter- vening claimant. 3. Suksdorff v. Bigham, 13 Oregon 369. See also Page v. Jewett, 46 X. H. 441. 679 In Attachment Proceedings. AMENDMENTS. Of Affidavits. that the error was a mere clerical mistake, the lien of the attachment as against a subsequent attachment will extend only to the amount originally claimed. 1 A Defective Verification. A defective verification in a complaint may be amended. 2 3. Of Affidavits In the Absence of Express Statute. In some of the states where there is no statute specifically providing for the amendment of affidavits, they cannot be amended to cure defects in substance. 3 Where the complaint fails to claim an amount within the jurisdiction of the court, but the affidavit and writ of attachment issued thereon are regular and sufficient in that respect, the at- tachment may be validated by an amendment of the complaint to con- form to the affidavit and writ. Greer v. Richardson Drug Co., i Tex. Civ. App. 634. 1. Suksdorff v. Bigham, 13 Oregon 369, decided on a rehearing. See also Page v. Jewett, 46 N. H. 441; Clough v. Monroe, 34 N. H. 381. In Townsend Nat. Bank v. Jones, 151 Mass. 454, it was held that an in- crease in the ad damnum so as to re- cover accrued interest on a draft which was the subject of the suit did not discharge the surety on a bond to dissolve the attachment. 2. Lowenstein v. Monroe, 52 Iowa 231. 3. In Texas an affidavit for an at- tachment cannot be amended. Marx v. Abramson, 53 Tex. 204; Sydnor v. Chambers, Dall. (Tex.) 601. California. The California Code Civ. Pro., 558, provides that if upon an application to discharge a writ of attachment it appears that the writ was improperly or irregularly issued, it must be discharged. Under this statute the affidavit cannot be amended. Winters -v. Pearson, 72 Cal. 553- In Maryland the affidavit cannot be amended in a substantial matter. Halley v. Jackson, 48 Md. 254, where the court refused to allow the name of one of the defendants to be struck out of the affidavit. The omission of the word " dollars " in the justices' certificate of the affi- davit may be treated as a clerical mis- prision when the warrant for the at- tachment supplies the omission. De Bebian v. Gola, 64 Md. 262. In Michigan there is no statute now in force permitting amendments to at- tachment affidavits, and such amend- ments have never been deemed ad- missible under the statute of amend- ments (How. Stat., Mich., 7631), which provides that "the court in which any action shall be pending shall have power to amend any pro- cess, pleading, or proceeding in such action either in form or substance for the furtherance of justice." Freer v. White, 91 Mich. 74. In that case it was held that the omission of the word "not" from the statutory aver- ment that the defendant is a non- resident and has not resided in this state for one year next preceding the date of the affidavit renders the affi- davit a nullity. In Greenvault v. Farmers', etc., Bank, 2 Dougl. (Mich.) 498, it was held that where the original affidavit is void and is amended under a statute, the attachment will be postponed to an intervening mortgage made by the defendant. In Louisiana it seems that the Chris- tian name of the defendant as con- tained in the petition, affidavit, and bond cannot be changed by amend- ment. Purdee v. Cocke, 18 La. 482. In Florida material defects in an affidavit in attachment cannot be amended. Tanner, etc., Engine Co. v. Hall, 22 Fla. 391; Work v. Titus, 12 Fla. 628. Ohio. Where plaintiff's affidavit was insufficient because fraud was sworn to on belief without stating the facts, an amended affidavit was held to be of no avail. Garner v. White, 23 Ohio St. 192. See also Pope v. Hibernia Ins. Co., 24 Ohio St. 481. Tennessee. The Tennessee Code, 3477, allows amendments in affidavits only for "defect in form," and a sub- stantial defect cannot be amended. Lillard v. Carter, 7 Heisk. (Tenn.) 604. A fortiori, where there is no affidavit 680 In Attachment Proceedings. AMENDMENTS. Of Affidavits. Under General Statute of Amendments. In others it IS held that the Stat- utes providing for the amendment of the pleadings, process, or proceeding in civil actions apply to attachment proceedings and authorize an amendment of substantial defects in affidavits therein. 1 a new one cannot be filed. McReyn- olds v. Neal, 8 Humph. (Tenn.) 12. Georgia. In Brown v. McCluskey, 26 Ga. 577, it was held that an affi- davit in attachment could not be amended, the Attachment Act of 1855 evidently restricting the right to amend to the "attachment," "bond," " declaration," and " warrant." Wisconsin. It was held in Slaugh- ter v. Bevans, i Pin. (Wis.) 348, that an affidavit for attachment is not amendable under any circumstances. West Virginia. A mistake in the date of an affidavit may be amended. Anderson v. Kanawha Coal Co., 12 W. Va. 526. 1. Nebraska. An affidavit for at- tachment may be amended even after a motion to quash the proceedings be- cause of that particular defect. Struth- ers v. McDowell, 5 Neb. 491, holding also that the court may permit the officer before whom the affidavit was made to attach a venue according to the fact. The latter point was also decided in Rudolf v. McDonald, 6 Neb. 163. An objection that the affiant's name was omitted from the body of the affi- davit, he having duly signed it, may be obviated by amendment. Rudolf v. McDonald, 6 Neb. 163. While an amendment of an affidavit for an attachment may be permitted when in furtherance of justice even on the hearing of the case, yet no new cause of attachment which existed when the action was brought can be brought in by amendment. Brook- mire v. Rosa, 34 Neb. 227. North Carolina. Under the North Carolina Code it is settled that the affidavit may be amended even though the first affidavit were wholly insuf- ficient. Brown v. Hawkins, 65 N. Car. 645; Pope v. Frank, 81 N. Car. 180; New Hanover Bank v. Blossom, 92 N. Car. 695; Penniman -v. Daniel, 93 N. Car. 332; Gushing v. Styron, 104 N. Car. 338; Sheldon v. Kivett, no N. Car. 408; Clark v. Clark, 64 N. Car. 150. In the case last cited the proceed- ings were begun before a justice of the peace, and the affidavit against a nonresident failed to state that the debt was due and that the defendant could not after due diligence be found in the state. Under 251 of the Code such amendments may be allowed by the clerk of the court. Gushing v. Styron, 104 N. Car. 338. Where the affidavit and process in a case of original attachment described the defendant as " C. E. Thorburn," his name in full being "Charles E. Thorburn," the court allowed them to be amended. Hall v. Thorburn, Phill. (N. Car.) 158. In Montana the affidavit may be amended without prejudice to the at- tachment. Muth v. Erwin (Mont., 1894), 36 Pac. Rep. 43. An affidavit which sets forth in the language of the statute fraudulent in- tent in disposing of the property may be amended on the trial so as to set forth the facts relied on. Josephi v. Mady Clothing Co. (Mont., 1893), 33 Pac. Rep. i. In Arkansas, under a statute provid- ing that " the court must in every stage of the action disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party," an affi- davit made on belief only is amend- able and therefore not assailable by an intervener in the action. Sannoner v. Jacobson, 47 Ark. 31. And an amendment was allowed in Rogers v. Cooper, 33 Ark. 406, where the attachment was issued by a justice of the peace upon an affidavit which stated none of the grounds for attach- ment prescribed by the statute. See also Nolen v. Royston, 36 Ark. 565; Fletcher v. Menken, 37 Ark. 206; Sherill v. Bench, 37 Ark. 560; Forten- heim -v. Claflin, 47 Ark. 49, where it was held that the omission of a jurat was amendable, and the court declared that the want of plaintiff's signature would be amendable. Kansas. The following cases were decided under the general provisions 681 In Attachment Proceedings. AMENDMENTS. Of Affidavits. By Express statute. In many jurisdictions affidavits are amendable under express statutory authority. 1 of the Code for amendments of any process or proceeding in furtherance of justice: In Robinson v. Burton, 5 Kan. 293, it was held that if the plaintiff, after having ample time and opportunity to amend a defective or informal affidavit, fail to comply with an order of the court requiring the same to be done, the court may then dissolve the at- tachment; also that an amended affi- davit which does not relate back to the time of filing the original, and the averments in which are in the present tense, does not cure the defects in the original. An affidavit may be amended so as to state formally and definitely what is therein stated informally and in- definitely. Burton v. Robinson, 5 Kan. 287. Where the statement of the nature of the plaintiff's claim in an affidavit for an attachment is not sufficiently definite and certain, a motion to dis- solve the attachment for such cause should state wherein and in what par- ticulars such statement is insufficient, so as to give the pla'intiff an oppor- tunity to amend the affidavit. Fer- guson v. Smith, 10 Kan. 397. An affidavit for attachment made by one who is in fact the agent or attor- ney of the plaintiff, but which fails to show that the party making it is the agent or attorney, may be amended so as to show that fact. Tracy v. Gunn, 29 Kan. 509; Cassidy v. Fleak, 20 Kan. 54. Where the grounds for the attach- ment are not sufficiently stated in the affidavit it is error to discharge the at- tachment without giving the plaintiff an opportunity to amend. Baker Wire Co. v. Kingman, 44 Kan. 270; Wells, Fargo & Co. v. Danford, 28 Kan. 487. New York. It was held in Furman v. Walter, 13 How. Pr. (N. Y. Supreme Ct.) 348, that an affidavit in an attach- ment under the provisions of the re- vised statutes was jurisdictional, and that a defect therein could not be amended; but that the contrary rule prevails in attachments under the Code, the attachment and original affidavits being proceedings in an action within the general statute of amendments which authorizes the amendment of any pleading or pro- ceeding by the insertion of material allegations therein. 1. Mississippi. The Mississippi Code, 2464, provides for the filing of a new affidavit or bond where the original is defective or insufficient in any re- spect. In an attachment sued out in the county where the debtor resided and his property was found, the affidavit and writ alleged a debt due, whereas the declaration was for a debt in part not due. The defendant moved to quash the affidavit and writ, whereupon the plaintiff moved to amend by insert- ing the amount not due and dismiss- ing as to the part due. The grounds alleged were those applicable to either. Held, that the amendment should have been allowed and the motion to quash denied, the fault in the affidavit being only a "defect" within the meaning of the Code. Dalsheimer v. McDaniel, 69 Miss. 339. A misrecital of the defendant's Christian name in one part of an af- fidavit for attachment is a mere clerical error and amendable. Davidson v. Martin, 33 Miss. 530. In Shaw v. Brown, 42 Miss, 309, the bond and affidavit were amended so as to bring in the proper parties, but the interests of third parties were not in- volved. The affidavit may be amended by adding a new ground for attachment. Fitzpatrick v. Flannagan, 106 U. S. 648, a case controlled by the Missis- sippi Code. Colorado. The Colorado Code, 117, provides that " no attachment shall be quashed on account of any informality or insufficiency of the original affidavit if the plaintiff shall file a sufficient af- fidavit in the case." Hence a defect in an affidavit will not sustain a col- lateral attack on the proceedings by a stranger. Leppelz/. Beck, 2 Colo. App. 390. In Skinner v. Beshoar, 2 Colo. 383, it was held that the affidavit might be amended by affixing a jurat, but that if there was no affidavit made or filed before the writ issued it should be quashed on motion. Iowa. The Iowa statute provides that "the attachment law shall be liberally construed, and the plaintiff In Attachment Proceedings. AMENDMENTS. Of Bonds. 4. Of Bonds. In one state at least attachments are regarded as having so little affinity with remedies at common law that material defects in a bond cannot be amended. 1 But according before or during the trial shall be per- mitted to amend any defect of form in theaffidavit, bond, attachment, orother proceeding." An affidavit for an attachment may be amended in substance as well as in form. Langworthy v. Waters, n Iowa 432; Stout v. Folger, 34 Iowa 71, where the affidavit was signed but not sworn to or certified; Shaffer v. Sundwall, 33 Iowa 579; VVadsworth v. Cheeney, 13 Iowa 576; Bunn v. Pritchard, 6 Iowa 58, where it was held reversible error to refuse to allow an amendment by inserting a single word omitted by the mere over- sight of counsel. Graves v. Cole, I Greene (Iowa) 405, holding that orders to dissolve an attachment and also to amend the defect for which it is dis- solved are not consistent. On the last point, see Stadler v. Parmlee, 14 Iowa 175- In Lowenstein v. Monroe, 52 Iowa 231, the verification of the grounds of attachment having been made upon belief only, the affidavit was amended against the protest of an intervener. Illinois. Under the Illinois statute providing specifically for the amend- ment of affidavits in attachment, it is the duty of the court, however de- fective the original affidavit may be, to permit a sufficient affidavit to be filed. Campbell v. Whetstone, 4 111. 361; Bailey v. Valley Nat. Bank, 127 111. 332. An affidavit for an attachment be- fore a justice of the peace asserting on " information and belief" that the defendant is not a resident of the state is amendable where an indebt- edness is positively sworn to. Booth v. Reed, 26 111. 45. Where an attachment is brought in aid of a suit at law, but is docketed separately, there is no error in allow- ing an amendment of the affidavit showing the attachment to be in aid of the suit at law and thus avoid a motion to dismiss the attachment for want of a separate declaration at the return term. Roberts v. Dunn, 71 111. 46. Alabama. 2998 of the Alabama Code authorizes the amendment of affidavits in form or substance. A plaintiff corporation having stated its name correctly in the original af- fidavit may file an amended affidavit avering its corporate character. Rosenberg v. Claflin (Ala., 1892), 10 So. Rep. 521. Under the statute prior to the one quoted above, affidavits were amend- able only to cure defects of form. Sims v. Jacobson, 51 Ala. 186; Hall v. Brazelton, 46 Ala. 359; Tommey v. Gamble, 66 Ala. 469, where a state- ment that the defendants " are or will be justly indebted," etc., was amended by striking out the words " or will be," the defect being regarded as one of form; Shield v. Dothard, 59 Ala. 595; Staggers v. Washington, 56 Ala. 225; Hall v. Brazleton, 40 Ala. 406; Flexner z>. Dickerson, 65 Ala. 129; Watts v. Womack, 44 Ala, 605, where the party who made the affidavit was permitted to subscribe his name to it in open court although the judge of the court was not the officer or judge before whom it was originally sworn to. Missouri. Rev. Stat., Missouri, 1879, 445, provides that when the affidavit for attachment is adjudged insuf- ficient, the attachment shall not be dis- solved if the plaintiff shall file a good and sufficient affidavit. It was held in Musgrove v. Mott, 90 Mo. 107, that the affidavit on which an attachment proceeding was instituted before a justice of the peace may be amended pending an appeal in the Circuit Court; that an amended af- fidavitmay embrace thesame and other grounds of attachment; and that if the affidavit be defective, the plaintiff need not wait until it is held insufficient, but may amend in advance. See also Henderson v. Drace, 30 Mo. 358; Middleton v. Frame, 21 Mo. 412; Hackney v. Williams, 3 Mo. 455. It is error to dissolve an attachment without giving the plaintiff a reason- able opportunity to file a new affidavit. Claflin v. Hoovee, 20 Mo. App. 314. 1. Roulhac v. Rigby. 7 Fla. 336; Tanner, etc., Engine Co. v. Hall, 22 Fla. 391. It was held in Houston v. Belcher, 12 Smed. & M. (Miss.) 514, that if an attachment bond given by the plain- 683 In Attachment Proceedings. AMENDMENTS. Of Bonds. to the prevailing rule, sanctioned in some cases by the general statutes of amendments and in others by express statutory pro- visions, bonds in attachment are amendable both in form and substance. 1 tiff, on suing out the attachment, be insufficient, the substitution of another bond afterward, under an order of the court to which the attachment is re- turnable, will not cure the defect; nor, it seems, will the waiver of the parties to the bond of an alleged defect in it be efficacious in upholding the attach- ment. ^ 2464 of the Mississippi Code now provides for amendment of bonds to cure a defect or insufficiency in any respect. 1. Missouri. An insufficient bondmay be amended regardless of the charac- ter of the defect. Van Arsdale v. Krum, 9 Mo. 397. See also Middleton v. Frame, 21 Mo. 412; Claflin v. Hoover, 20 Mo. App. 314; Henderson v. Drace, 30 Mo. 358. A bond executed by a firm in the partnership name is not a nullity, and it is error not to allow a sufficient bond to be filed. Tevis v. Hughes, 10 Mo. 380. In an attachment suit commenced in the names of the members of the firm of "Wood, Bacon & Co." the at- tachment bond purported to be the bond of " Wood, Bacon & Co." as principals and " Northrup & Co." as sureties, and was signed thus: " Wood, Bacon & Co. [seal] by their attorney, P. S. Brown [seal]; Northrup & Co. by H. M. Northrup [seal]." It was held that the bond was not a nullity, and could be amended. Wood v. Squires, 28 Mo. 528. New York. In Kissam v. Marshall, 10 Abb. Pr. (N. Y. Supreme Ct.) 424, it was held that an undertaking given on the issuing of the warrant for an attachment which is insufficient in amount may be amended by filing a new one under the statute providing for the amendment of pleadings and proceedings in general and that such amendment may be made on the hear- ing of a motion to vacate the attach- ment on the ground of the defect. A justice of the peace has authority to allow an amended undertaking to be filed. Riley v. Skidmore, 2 Silv. (N. Y. Supreme Ct.) 573. In Alabama there is no difference be- tween a void and a defective bond in attachment, and in either case it is the duty of the court to permit the plain- tiff to substitute a sufficient bond. Jackson v. Stanley, 2 Ala. 326; Alford v. Johnson, 9 Port. (Ala.) 320. See also Code of 1886, 2998. But if the plaintiff when required by the court to amend declines to do so, the attachment may be quashed. Lowry v. Stowe, 7 Port. (Ala.) 483. In Illinois an insufficient bond may be amended under the provisions of the Attachment act. Bailey v. Valley Nat. Bank, 127 111. 332. In Georgia, under the Attachment act of 1856, a bond in attachment was amendable in matters of form. Oliver v. Wilson, 29 Ga. 642. And the plain- tiff with the assent of his sureties was allowed to amend his bond by increas- ing it. Irvin v. Howard, 37 Ga. 18. In Iowa, if the bond is not filed for a sufficient amount it may be cured by filing a new bond, the authority being conferred by a specific provision in the statute. Van Winkle v. Stevens, 9 Iowa 264; Cheever v. Lane, 9 Iowa 193; Gourley v. Carmody, 23 Iowa 212. When a new bond is substituted it will be treated as if filed when the action was commenced. Branch Bank v. Morris, 13 Iowa 136. Where an attachment bond recited that the proceedings were had in the district court of a county which was not the one in which the suit was actually commenced, it was held that the defect could be cured by an amended bond. Holmes v. Budd, n Iowa 186. In Montana, where the bond is de- fective or even void a new bond may be filed without prejudice to the at- tachment, under the statute authoriz- ing an amendment of any pleading or proceeding for the correction of any mistake in furtherance of justice. Pierse v. Miles, 5 Mont. 549. In Michigan the statute permits a new bond to be filed where the original is defective. Kidd v. Dougherty, 59 Mich. 240. In Tennessee, where the bond is de- fective it may be amended. Alex- ander v. Lisby, 2 Swan (Tenn.) 107. 684 In Attachment Proceedings. AMENDMENTS. Of the Writ. An attachment based upon an undertaking not signed by the plaintiff is void and cannot be cured by subsequent amendment. 1 5. Of the Writ in General. A writ of attachment cannot be amended in such a manner as to change essentially the nature of the action ; a and an amendment of the writ by substituting en- tirely different parties will operate as a discharge of bail. 3 But in other respects it is in general amendable to the same extent as a writ in ordinary actions, 4 and without affecting the attachment. 5 In Minnesota the court may permit a bond to be amended nunc pro tune. Blake v. Sherman, 12 Minn. 420. In Arkansas bonds in attachment are amendable under the general statute of amendments. Mandel v. Peet, 18 Ark. 236. In Colorado a defective bond may be amended and the proceeding then be- comes valid from the beginning. McCraw v. Welch, 2 Colo. 284. 1. Wagenerz'. Booker, 31 S.Car. 375. 2. Changing Form of Action. An amendment of the writ by altering the form of action, where the nature of the action is thereby changed, will discharge bail. Bradhurst v. Pear- son, 10 Ired. (N. Car.) 55. 3. Smith v. Shaw, 8 Ired (N. Car.) 233. In that case the writ was issued in the name of A. B. & Co., and the names of A. B., C. D., and E. F., composing the firm, were substi- tuted by amendment. In Moulton v. Chapin, 28 Me. 505, the attachment was dissolved by add- ing another person as coplaintiff. 4. See supra, IV. 5. Indorsement. It is not a defense in an action on a recognizance of special bail that the plaintiff was per- mitted to amend the indorsement on the writ to correspond with the facts and the declaration, where the amend- ment only changed the description and not the cause of action. Enos v. Aylesworth, 8 Ohio St. 322. Recital of Grounds. An attachment recited as the ground thereof that defendant, "a resident of this'state, has departed therefrom with intent to defraud his creditors." It appeared, however, that he had left the state to escape imprisonment for a crime of which he had been convicted, and had permanently taken up his residence in another country. It was held under the New York Code Civ. Pro., g 721- 723. providing for the correction by amendment of irregularities in any process, pleading, or other proceed- ing, that the plaintiff would be al- lowed to amend the attachment by stating defendant's nonresidence as the ground. Thames, etc., Ins. Co. v. Dimmick (Supreme Ct.), 22 N. Y. Supp. 1096. Inserting Name of Trustee. An amendment of a writ by inserting the name of a trustee may be allowed against the objection of subsequent attaching creditors when it is shown that the trustee was duly served and he appears and answers and is ad- judged chargeable, and that a part of the funds for which he is chargeable has been paid over to the plaintiff without objection from the creditors, and when neither the defendant nor the trustee objects to the amendment. Johnson v. Abbott, 60 N. H. 150. Changing Garnishee. Where a mem- ber of a firm is a garnishee, the writ cannot be amended after it is entered in court so as to reach a debt due from the firm. Knapp v. Levanway, 27 Vt. 298. A Here Clerical Error in the writ may be amended. Hagerstown First Nat. Bank z/.Weckler, 52 Md. 30; McCoy v. Boyle, 10 Md. 391, an error in the date of the writ manifest from an inspection of the record of the court. Void Attachment. An attachment of real estate invalid when made can- not be rendered valid by an amend- ment of the writ. Drew v. Alfred Bank, 55 Me. 450. Amendment Discretionary. The ap- plication to amend the writ is within the discretion of the court; and where an application to amend the original writ in a suit by attachment is resisted by the defendant and no notice of the application is given to the garnishee, it is not an abuse of discretion to re- fuse leave to amend. Thompson v. McHenry, 18 Ark. 537. Essential Defects. In Barber v. Swan, 4 Greene (Iowa) 352, it was 685 In Attachment Proceedings. AMENDMENTS. Of the Writ. Direction, and Return Time or Place. The direction of the writ may be amended, 1 and under some circumstances an error in the time, place, or court to which the writ is returnable. 2 Caption. A writ not running in the name of the state is amend- able 3 and should be amended by the court of its own motion. 4 Misnomer of the parties may be cured by amendment. 5 held that a writ of attachment essen- tially defective could not be amended. 1. Warren v. Purtell, 63 Ga. 428. Where an attachment was directed to the " sheriff of the county of Chat- ham " instead of "to all and singular the sheriffs and constables of this state," it was held that it might be amended, it having been addressed to one of the individuals entrusted by law with its execution, and there being something, therefore, to amend by. Smets v. Wethersbee, R. M. Charlt. (Ga.) 537- Where the office of sheriff and coroner are both vacant, or where there is no coroner and the sheriff is interested in the suit and process is directed to a constable in accordance with a statute, the fact of such va- cancy or disqualification ought to be suggested and recited in the writ. But the omission of such recital does not make the writ void, and it may be supplied by amendment. Thompson v. Bremage, 14 Ark. 59. Contra. A writ which contained no direction to the sheriff to summon the defendant as required by the statute was held to be void and not amend- able so as to affect the rights of third persons. Whitney v. Brunette, 15 Wis. 61. 2. Time. Where the return day in a writ is amended with the consent of the defendant and the trustee, the latter cannot be discharged on motion of the defendant upon the ground that there has been no valid attachment. Uarry v. Hogan, no Mass. 209. A mistake in the year when it was returnable was amended by other parts of the record. McClanahan v. Brack, .rj Miss. 246. A writ returnable on a wrong day was amended in Tapley v. Doane, 3 Colo. 22, and in Archibald v. Thomp- son, 2 Colo. 388, where it was return- able to the wrong terra. In Moss v. Herring, 2 Miles (Pa.) 93, the writ was amended by the praecipe in respect of the return day. Where an attachment is sued out as an auxiliary to a suit commenced in the ordinary mode, a mistake in the writ of attachment of the time when the court is held in which the original suit is pending is amendable. Scott v. Macy, 3 Ala. 250. Court. In Mohr v. Chaffe, 75 Ala. 387, the writ, which was originally made returnable to the circuit court, was amended after appearance of the defendant in the city court by making it returnable to the latter court. An attachment issued on the 3d of April, 1866, returnable to the "in- ferior" court is amendable by insert- ing the word "county" instead of "inferior." Covington v. Cothrans, 35 Ga. 156. 3. Livingston v. Coe, 4 Neb. 379. 4. Kahn v. Kuhn, 44 Ark. 404. 5. Christian Names Omitted. In Bar- ber v. Smith, 41 Mich. 138, the plain- tiffs' surnames only were given in the writ, but they were identified by de- scription, and an amendment was al- lowed by inserting their full names. Changing Surname. A writ on which an attachment has been made may be amended by substituting Wight for Wright, as the name of one of the plaintiffs, without affecting the attach- ment. Wights. Hale, 2 Cush. (Mass.) 486. Inserting Alias. An amendment of a writ against "William Robinson" by inserting the words, " otherwise called William J. Robinson" does not vacate an attachment so as to give an inter- vening mortgagee priority. Diettrich v. Wolffsohn, 136 Mass. 335, distin- guishinglGrry v. Sisson, 125 Mass. 560. Changing Middle Initial in the name of the defendant will not dissolve an attachment of personal property when no rights of third parties have inter- vened. Wentworth v. Sawyer, 76 Me. 434- Misnomer of Garnishes. Where the firm of " J. Allen & Bro." consisted of Joseph and John Allen, and upon an affidavit that "John Allen & Bros." were indebted, etc., a summons in garnishment was served upon one 686 In Attachment Proceedings. AMENDMENTS. Of the Writ, Ad Damnum. An inadvertent error in stating the amount of the indebtedness in a warrant of attachment maybe amended without vacating the attachment. But where an amendment is allowed, the attachment will be vacated on motion of a junior attachment creditor unless the utmost good faith on the part of the plaintiff is established. 1 signature, Seal, Date. The want of a signature, 2 or a defect therein, 3 or the want of a seal, 4 may be cured by amendment. Where the date in the attestation was left in blank it was amended by other parts of the writ. 5 Teste. If the writ is not properly attested it is amendable. 6 member of the firm, and the firm ap- peared and answered by one of its members held, that the misnomer of the garnishee in the affidavit and summons was of no importance, and an amendment in that respect was properly allowed. Bushnell -v. Allen, 48 Wis. 460. If the trustee is served by a wrong name in the writ, which is afterwards amended, and instead of pleading in abatement he answers to the merits, the objection is waived. Sears v. Columbian Ins. Co., 12 Allen (Mass.) 367- Allowed by Justice of the Peace. A justice of the peace may allow an amendment to cure a misnomer of the defendant. Morse v. Barrows, 37 Minn. 239. Names of Partners. North Dakota Comp. Laws, 4940, provides that " when the plaintiff shall be ignorant of the name of the defendant, such de- fendant may be designated in any pleading or proceeding by any name; and when his true name shall be dis- covered, the pleading or proceeding may be amended accordingly." It was held that a summons otherwise in due form, in which the defendants were designated only by their firm-name, was amendable so as to show the names of the parties, and an attach- ment issued thereon was sustained. Cans v. Beasley(N. Dak., 1894), 59 N. W. Rep. 714. Misdescription of Defendant. The de- scription of the defendant may be changed from "The R. Grocery Co., a corporation," to " E. R., a married woman doing business," by the duly recorded consent of her husband, "under the name and style of the R. Grocery Co.," where the identity of the defendant is not changed. Ex p. Nicrosi (Ala., 1894), 15 So. Rep. 507. 1. Peiffer v. Wheeler (Supreme Ct.), 27 N. Y. Supp. 771, where the attach- ment was vacated for want of a suffi- cient showing of good faith. See also Gourley v. Carmody, 23 Iowa 212; Atkins v. Womeldorf, 53 Iowa 150. 2. A warrant of attachment issued under the Code as a provisional remedy may be amended by supplying the omission of the signature of the attorney. Kissam v. Marshall, 10 Abb. Pr. (N. Y. Supreme Ct.) 424. 3. Where a justice of the peace in issuing an attachment neglects to add to his signature words or letters de- noting his office, they may be added on motion after proof that he was duly authorized to issue attachments, that he had signed in his official capacity and had omitted the words of addition accidentally. Dickson v. Thurmond, 57 Ga. 153.' 4. See supra, IV, I,/. In Foss v. Isett, 4 Greene (Iowa) 76, it was held that the want of a seal to a writ of attachment could not be sup- plied by amendment. So where the writ bore the seal of the wrong court. Shaffer v. Sund- wall, 33 Iowa 579. But in Murdough v. McPherrin, 49 Iowa 479, decided after the statute was changed so as authorize a defect of form in the affidavit to be amended, it was held that a writ of attachment issued under the seal of one court while the action was pending in an- other was amendable by attaching the proper seal. In Whittenberg -v. Lloyd, 49 Tex. 633, a seal was allowed to be affixed after motion to quash the writ was sustained, the latter order being set aside. 5. Brack v. McMahan, 61 Tex. I. 6. Skinner v. Beshoar, 2 Colo. 383- 687 In Criminal Proceedings. AMENDMENTS. Of Indictments. VI. IN CRIMINAL PROCEEDINGS 1. Of Indictments a. AT COMMON LAW (i) /;/ Substance. An indictment cannot, except in cases where the law has specially authorized such proceeding and in matters of form which are not matters of substance, be amended by the court without the concurrence of the grand jury, 1 even with the consent of the accused. 2 But an order of the court sustaining a demurrer to a count cannot be treated as an amend- ment to the indictment. 3 Lost Indictment. If an indictment is lost at any time before the trial, though after arraignment and plea, the accused cannot be tried upon it. 4 1. Ex p. Bain, 121 U. S. i; United States v. Davis, 6 Fed. Rep. 682; Haw- thorn v. State, 56 Md. 530; Patrick v. People, 132 111. 529; Allen v. State, 5 Wis. 329; State v. McCarty, 2 Pin. (Wis.) 513; Hite v. State, 9 Yerg. (Tenn.) 198; State v. Squire, 10 N. H. 558; State v. Sexton, 3 Hawks (N. Car.) 184; State v. Springer, 43 Ark. 91; People v. Herman, 45 Hun (N. Y.) 175; State v. Chamberlain, 6 Nev. 257; Com. v. Seymour, '*. Brewst. (Pa.) 567; State v. McCormack, 22 Tex. 297. See also Com. v. Drew, 3 Cush. (Mass.) 279. "At common law clerical errors only in an indictment could be amended." State v. Lyon, 47 N. H. 416. In the Federal Courts. In Ex p. Bain, 121 U. S. i, it was held that in the courts of the United States no part of the body of an indictment can be amended after it has been found and presented by a grand jury, either by order of the court or on the request of the prosecuting attorney, without being resubmitted to them for their approval. After a Writ of Error the appellate court cannot amend an indictment, even to correct a clerical error. Cruiser v. State, 18 N. J. L. 206. Rex v. Darley, 4 East 174, and the case referred to in the note to that case, were upon removals of the in- dictments by certiorari before judg- ment and rtot in error. Remand for Purpose of Amendment. Amendments must be made during the progress of the trial and before the case is submitted to the jury. It cannot be remanded by the appellate court upon reversal of the conviction with authority to amend. State v, Joseph, 40 La. Ann. 5. 2. People v. Campbell, 4 Park. Cr. Rep. (N. Y.)387- In a Capital Case it was held that the indictment could not be amended even with the consent of the accused. Com. v. Mahar, 16 Pick. (Mass.) 120, an indictment for arson, where the prisoner's counsel consented that the name of the owner of the house should be inserted. Changing Forgery to False Pretences. The court has no authority even with the defendant's consent to direct an indictment for forgery to be changed to obtaining money by false pretenses and trial to be had thereon. Com. v. Adams, 92 Ky. 134. Consenting to Change of Date. Where the defendant, to obviate the necessity of returning the indictment to the grand jury for a correction of the date at which the offense was al- leged as having been committed, con- sented to the correction in open court and to a waiver of record of all ob- jection and then pleaded to the indict- ment, and afterwards moved to quash on account of the correction, it was held that the motion should be over- ruled. McCorkle v. State, 14 Ind. 39. Record Must Show Consent. Under the Alabama Code of 1886, sec. 4389, providing that an indictment may be amended with the consent of the defendant when the name "of the defendant is incorrectly stated," it is reversible error to allow an indict- ment to be amended so as to cor- rect a misnomer set up by the de fendant's plea in abatement where the record does not show affirmatively that defendant consented to the amendment. Shiff v. State, 84 Ala. 454- 3. State v. McKiernan, 17 Nev. 224. 4. Bradshaw v. Com., 16 Gratt. (Va.) 507, following Ganaway v. State, 22 Ala. 772 (decided by a divided court), and Harrisons. State, 10 Ye^j;. 688 In Criminal Proceedings. AMENDMENTS. Of Indictments. Kecommitting for Amendment. An indictment may be withdrawn by leave of the court and recommitted for amendment to the grand jury by which it was found, 1 and returned by them into court. 2 But there is no authority for withdrawing an indictment at a term of the court subsequent to that at which it was found and recommitting it to a different grand jury. 3 (2) In Matters of Form. In a few instances it has been held that the court may, at common law and before the commence- ment of the trial, amend an indictment in matters of form without the concurrence of the grand jury. 4 (Tenn.) 542, and holding that the pro- vision of the Virginia Code authorizing a lost record or paper to be substituted by an authentic copy or proof of its contents applies only to civil actions and does not extend to records or papers in criminal proceedings. Harrison v. State, 10 Yerg. (Tenn.) 542, holds that a lost indictment may be supplied during the term by making a copy from the recollection of the judge. Nunc Pro Tune Entry. The defendant in a criminal prosecution cannot be put upon trial on a nunc pro tune entry made by order of the court showing the return into court by the grand jury of an indictment against the de- fendant, and that it has been de- stroyed. But under thefndtana statute, where a record has been made of an indictment which has been destroyed, the defendant may be put to trial on a certified copy of the same. Buckner v. State, 56 Ind. 208. 1. State v. Withrow, 47 Ark. 551. Inserting Word " Dollars." Where in an indictment the word "dollars" was omitted, it is competent for the grand jury at the same term of the court at which the indictment was re- turned by them to come into court and amend the indictment by insert- ing the word "dollars." Garvin v. State, 52 Miss. 207. 2. Lawless v. State, 4 Lea (Tenn.) 173 ; State v. Davidson, 2 Coldw. (Tenn.) 184. The record must verify the fact of the return into court of the amended indictment. McKinley v. State, 8 Humph. (Tenn.) 72. 3. State v. Davidson, 2 Coldw. (Tenn.) 184. See also Anger v. State, 42 Miss. 642. Rev. Code of Mississippi, 615, art. 257, provides that "the indictment may be amended with the consent of the grand jury or of the court, or after- wards by the consent of the defendant, with the permission of the court." It is error for the court to allow a material amendment at a subsequent term. Kline v. State, 44 Miss. 317. 4. Cain v. State, 4 Blackf, (Ind.) 512; Hawthorn v. State, 56 Md. 530. See also Hite v. State, 9 Yerg. (Tenn.) 198. Consent in Advance. " It is the com- mon practice for the grand jury to consent, at the time they are sworn, that the court shall amend matters of form, altering no matter of sub- stance ; and mere informalities may therefore be amended by the court be- fore the commencement of the trial." i Chitty Crim. Law, 297. In Cain v. State, 4 Blackf. (Ind.) 512, it was said that "the settled prac- tice when an amendment is returned into court is to obtain the consent of the grand jury that the court may amend it in matters of form, not alter- ing the substance." This practice has not been adopted in New Hampshire, where "an indict- ment once found is unalterable" by the court. State v. Squire, 10 N. H. 558. And Mr. Bishop inclines to the opin- ion that the practice is not supported by sound reason, i Bishop Cr. Pro. (3d ed.) 710. Signature of Foreman. In State v. Squire, 10 N. H. 558, it was held that where an indictment was returned into court, but the signature of the foreman was by accident omitted, it could not afterwards be affixed by the foreman or amended, except on re- commitment to the jury. Recommitment, When Prudent. Where the prosecuting attorney moves to amend and the court decides against him, he should recommit the matter to the grand jury. Where appeals are i Encyc. PI. & Pr. 44. 689 In Criminal Proceedings. AMENDMENTS. Of Indictments. (3) The Caption. The caption of an indictment is no part of the finding of the grand jury, and may be amended at any time before the case is removed to a higher court. 1 It may be amended by the minutes of the court or by what appears on the bill itself, even after conviction and after motion in arrest of judg- ment.* (4) What Constitutes Substance In General. Matter that is essen- tial to be set forth or to show that an offense has been committed is matter of substance, and cannot be amended without the con- currence of the grand jury. 3 allowed in behalf of the state in crim- inal cases, they are discouraged by the appellate courts in cases involving the mere right to amend. State v. Withrow, 47 Ark. 551. 1. U. S. -v. Thompson, 6 McLean (U. S.) 56; Moody -v. State, 7 Blackf. (Ind.) 424; State v. Gilbert, 13 Vt. 647; State v. Williams, 2 McCord L. (S. Car.) 301, where it was amended after conviction; State v. Moore, 24 S. Car. 150; State v. McCarty, 2 Pin. (Wis.) 513; State v. McCarty, 2 Chand. (Wis.) 199; State v. Emmett, 23 Wis. 632; Allen -v. State, 5 Wis. 329, where the caption was amended so as to show that the actual presentment of the in- dictment was subsequent to the date on which the offense was charged to have been committed. State v. So- ciety, etc., 42 N. J. L. 504. See also State v. Jones, 9 N. J. L. 2; Osborne v. State, 23 Tex. App. 431, 24 Tex. App. 398; Bosshard v. State, 25 Tex. Supp. 207; Banks v. State, 7 Tex. App. 591; Walker v. State, 7 Tex. App. 52; Sharp v. State, 6 Tex. App. 650. Com- pare State v. Davidson, 36 Tex. 325. In State v. Jenkins, 64 N. H. 375, an erroneous statement in the caption of an indictment of the year in which it was found was amended. After Removal by Certiorari. The caption may be amended after the case has been removed into the Supreme Court by certiorari, and the amendment may be made upon proper evidence of the facts and entries on the minutes of the oyer and ter- miner; or the certiorari may be re- turned to that court and the amend- ment made there. In this case the record was returned for that purpose. State v. Jones, 9 N. J. L. 357. Nunc Pro Tune. Where the journals of the court furnish something to amend by, the caption may be amended at any time nunc pro tune. Vandyke v. Dare, i Bailey (S. Car.) 66, where it was said that "it has become so much a matter of course that it is usually left in blank until some occasion occurs which renders its perfection necessary, and then leave is obtained for rilling it up as a matter of course." What Constitutes the Caption. Starkie Cr. PI., p. 258, describing what is meant by the phrase "caption of an indictment," says: "Where an in- ferior court, in obedience to a writ of certiorari, from the king's bench, transmits the indictment to the crown office, it is accompanied with a formal history of the proceeding, describing the court before which the indictment was found, the jurors by whom it was found, and the time and place where it was found. This instrument, termed a schedule, is annexed to the indict- ment, and both are sent to the crown office. The history of the proceed- ings, as copied or extracted from the schedule, is called the caption, and is entered of record immediately before the indictment." 2. State v. Creight, i Brev. (S. Car.) 169. Erroneous Title. In Brown v. Com., 78 Pa. St. 122, an indictment was found in the quarter sessions, but entitled as in the oyer and terminer, where it was tried. Held, that the caption might be amended after trial, convic- tion, sentence, and writ of error, but before the record had been returned. 3. State v. Startup, 39 N. J. L. 423; State -v. Lyon, 47 N. H. 416. Single Material Word. Where an in- dictment omits a material word, al- though it be but a preposition or a helping verb, the court will not from a knowledge of the language supply the missing word so as to support the probable intention of the grand jury, but will sustain a judgment quashing 690 In Criminal Proceedings. AMENDMENTS. Of I ndictments. Date of Offense. The allegation of the date at which the offense was committed is emphatically matter of substance. 1 Names. The name of the accused is matter of substance, 2 and the name of the owner of goods in an indictment for larceny. 3 Value of Goods. And the allegation of the value of the goods where the distinction between grand and petit larceny is deter- mined by the value is material. 4 Venue of Offense. Under a statute which was construed to au- the indictment. State v. Daugherty, 30 Tex. 360; State v. Hutchinson, 26 Tex. ii, in both of which cases the word "did" was omitted in charging the commission of the offense. After going to trial an indictment for robbery cannot be amended by in- serting the word " feloniously " before the word M rob." State v. Durbin, 20 La. Ann. 408. Striking Out Material Words. Where the defendant was indicted, in the lan- guage of the statute, for an " attempt to set at liberty or rescue" a person, it was error to allow the state's attor- ney after the argument to strike out the words "or rescue" and to enter nol. pros, on that charge. Patrick v. People, 132 111. 529. Name of Owner of House. An indict- ment for burglary of the house of Jere- miah B. Fuller cannot be amended to conform to proof that the owner 's name was Jedediah B. Fuller, unless in the presence and with the concur- rence of the grand jury or with the consent of the accused, under Rhode Island Pub. Stat., c. 248, 4. It is matter of substance. State v. Mc- Carty, 17 R. I. 370. Time of Death. An indictment for murder which charges that "of said mortal wounds said A. did immediately languish, and languishing did die," is defective in not specifically alleging when and how long after the wound- ing the death occurred. The defect is not cured by the statute of jeofails and will authorize the quashing of the indictment. State v.. Sides, 64 Mo. 383- 1. Sanders v. State, 26 Tex. 119; States. Davidson, 36 Tex. 325; Dick- son v. State, 20 Fla. 800. See also State v. Beckwith, i Stew. (Ala.) 318; Com. v. Seymour, 2 Brewst. (Pa.) 567; State v. Roach, 2 Hayw. (N. Car.) 352; State v. Sexton, 3 Hawks (N. Car.) 184. Compare State v. Elliot, 34 Tex. 148; State v. Pierre, 39 La. Ann. 915. Mere Clerical Error. Under the Iowa Code, 4538, which provides that on appeal the court must, without regard to technical errors not affecting substan- tial rights, render judgment, where, by a clerical error, an indictment charged the defendant with larceny on a day in 1890 which was an impossible date, a conviction was not disturbed for allowing an amendment placing the date in 1888, as it was sufficiently alleged in another part of the indict- ment. State v. Brooks (Iowa, 1892), 52 N. W. Rep. 240. In New Hampshire. An indictment charging the commission of a burglary on a day subsequent to the time of finding the indictment may be amended under the statute on demurrer or on motion so as to state the true date; and if not thus amended, it will be cured by verdict. State v. Blaisdell, 49 N. H. 81. 2. Com. v. Buzzard, 5 Gratt. (Va.) 694, where it was held not to be amendable, although the record of the court and the indorsement on the in- dictment showed the correct name. See State v. New Jersey Turnpike Co., 16 N. J. L. 222. In McGuire v. State, 35 Miss. 366, it was held that the court has no power to amend an indictment by correcting a mistake in the Christian name of the defendant without the consent of the grand jury which found the indict- ment. The case was decided before the enactment of the Mississippi statute of amendments. 3. State v. Lyon, 47 N. H. 416, hold- ing that a defect therein could not be amended under the New Hamp- shire statute authorizing amendments 11 where the person or cause may be rightly understood by the court," "or for defect or want of form or addition only." 4. State v. Goodrich, 46 N. H. 186. See also State v. Chamberlain, 6 Nev. 257; Collins v. State, 6 Tex. App. 647. 691 In Criminal Proceedings. AMENDMENTS. Of Indictments. thorize amendments of form only, an amendment by inserting the name of the county in which the offense was committed was held to be erroneous. 1 (5) What Constitutes Form In General. A defect that does not affect the merits of the case or the evidence necessary to be given to maintain the indictment can be regarded as only formal. 2 Defective Introduction. Where an indictment read, " The grand jurors impaneled and sworn," etc., "upon their present," the attorney for the state was properly given leave to amend by insert- ing the word "oath." 3 Informal Conclusion. An indictment " against the peace of the state " may be so amended by the prosecuting attorney, with leave of the court, as to read " against the peace and dignity of the state " so as to conform to the constitution. 4 So the entire omission of that conclusion may be remedied by amendment, although the clause is required by the constitution of the state. 5 Name of Person Defrauded. An indictment for forgery with intent to cheat and defraud a certain person may be amended by striking out the name of the person. 6 signature of District Attorney. Where there is no law requiring the district attorney to sign a bill of indictment, an amendment by affixing his signature is regarded as merely formal. 7 b. BY STATUTE (i) Constitutionality of Acts Changing the Crime. It is plain that the legislature cannot constitutionally authorize an amendment in substance which will change an indictment found by a grand jury so as to substitute one crime for another charged therein ; 8 nor, if the indictment fail to set out any crime, 1. State v. Armstrong, 4 Minn. 335. which described the particeps as Rox- 2. State v. Arnold, 50 Vt. 731. See cena Whitney, by inserting after that also State v. Hilton, 41 Tex. 565; Long name the words "otherwise called v. State, i Tex. App. 466. Rosa Whitney," and it was held to be Unnecessary Amendment. Allowance only formal. State v. Arnold, 50 Vt. of an amendment which was not neces- 731. sary is not error. Hammond v. State, 4. State v. Cain, 4 Blackf. (Ind.) 14 Md. 135. 512. 3. The amendment was of no conse- 5. State v. Amidon, 58 Vt. 524. quence. State v. Moore, i Ind. 548. 6. Hawthorn v. State, 56 Md. 530. Under the Louisiana statute of 1855 7. State v. Crenshaw, 45 La. Ann. providing against the crime of arson, 496. the state will be allowed to amend the In Texas, Paschal's Dig., art. 2977, indictment in all matters relating to provides that " when the exception to the form thereof. an indictment is merely on account of After the jury was impaneled and form, the same shall be amended if the trial commenced, the district attor- decided to be defective, and the cause ney moved to amend the indictment proceed upon such amended indict- by inserting the words "the aforesaid ment." barn and stable being," which was al- It seems that if an indictment does lowed by the court. Held, that the not show on its face that it was found amendment did not alter the sub- in the " district court " of the proper stance of the indictment or create a county, the defect is merely formal new or different charge. State v. and may be cured by amendment. Elder, 21 La. Ann. 157. Mathews v. State, 44 Tex. 376; Walker On the trial of an indictment for v. State, 7 Tex. App. 52; Long v. State, adultery the prosecution was properly i Tex. App. 466. allowed to amend the indictment 8. State v. Startup, 39 N. J. L. 432. 692 In Criminal Proceedings. AMENDMENTS. Of Indictments. can the court so amend it as to charge the crime which it is sup- posed the jury intended. 1 Variance in Particulars. But statutes have been declared constitu- tional which provide that when a variance between the allegation contained in the indictment and the proof shall arise in respect to time or in the name or description of any place, person, or thing, the court may direct an amendment according to the proof, if it shall be of opinion that the defendant cannot be prejudiced thereby in his defense on the merits. 2 A similar statute was held to apply to indictments pending at the time of its enact- ment, and not to be an ex post facto law. 3 Misnomer of Accused. A statute directing that where the accused is indicted under a wrong name and he gives his true name when arraigned, it shall be so entered on the minutes, and he shall be tried under his true name, is constitutional. 4 Allegation of Former Conviction. The validity of a statute allowing the amendment of an allegation of a former conviction was upheld. 5 Amendment in Defendant's Absence. The absence of the accused, when the hearing of a motion for amendment is had, will not vitiate the proceedings. 6 (2) Names, Dates, Descriptions, etc. In many of the states the statute provides for an amendment to. correct an error in names, dates, or descriptions of persons or things, 7 or to cure variances See also Ex p. Bain, 121 U. S. i; 458, holding that it was not a violation State v. Springer, 43 Ark. 91. of the I2th article of the Declaration A statute allowing amendments in of Rights, which directs that no sub- those cases where the "defendant ject shall be held to answer for any will not be unjustly prejudiced crime or offense until the same is thereby" was construed to confine fully, plainly, substantially, and for- amendments to matters of form, mally described to him. State v. Armstrong, 4 Minn. 335. 6. State v. Dominique, 39 La. Ann. .1. State v. Startup, 39 N. J. L. 423. 323. 2. People v. Johnson, 104 N. Y. 213; 7. New York. By 293 of the New People v. Herman, 45 Hun (N. Y.) York Code of Criminal Procedure 175; Peebles v. State, 55 Miss. 434. power is given to the court to allow 3. State -v. Manning, 14 Tex. 402. certain amendments to obviate the 4. People v. Kelly, 6 Cal. 210. See difficulties presented by a " variance also Morris v. State, 4 Tex. App. 589. between the allegations therein and The Missouri statute providing that the proof," viz., (i) " in respect to time if a defendant be indicted by a wrong or (2) in the name or description of name and he does not declare his true any place, person, or thing." name before pleading, he shall be In a prosecution for burglary the proceeded against by the name in the court properly allowed an amendment indictment, and if he allege that to cure a variance between the names another name is his true name it must of the owners of the property entered be entered on the minutes of the and the proof, and also in the descrip- court, and after such entry the trial tion of such persons. People v. Rich- and all other proceedings shall be had ards, 44 Hun (N. Y.) 278. against him by that name, referring The name of the owner of property also to taht name by which he is in- stolen was changed in People v. Her- dicted, etc,, is constitutional. State man, 45 Hun (N. Y.) 175. v. Schricker. 29 Mo. 265. Where an indictment for seduction 5. Com. v. Holley, 3 Gray (Mass.) under promise of marriage is defective 693 In Criminal Proceedings. AMENDMENTS. Of Indictments. iri not giving the correct surname of the female, the court on the trial has power to cure the defect by directing an amendment. People v, Johnson, 104 N. Y. 213, affg 4 N. Y. Ct. Rep. 59i- New Jersey. Under a statute pro- viding that any defect of form or substance apparent on the face of the indictment may be amended, an indictment charging that the de- fendant did send and convey an inde- cent letter, etc., is amendable by in- serting send or convey so as to accord with the language of the statute cre- ating the offense. Larison v. State, 49 N. J. L. 256. Alabama. The Alabama Code pro- viding for amendments of indictments in certain particulars with the consent of the defendant was construed to for- bid any amendment even in an imma- terial matter without the defendant's consent. Gregory v. State, 46 Ala. 151; Johnson v. State, 46 Ala. 212. An indictment containing a single count charged that the defendant feloniously took and carried away three one-dollar bills and also two five- dollar bills, and the proof showed that he took two five-dollar bills and three ten-dollar bills, but no one-dollar bills It was held to be a case of a mis- description within the meaning of the Code, and amendable with the con- sent of the defendant, or that the prosecution might be dismissed on his refusal to consent, as provided by the Code. Reynolds v. State, 92 Ala. 44. An indictment for larceny or for re- ceiving stolen goods may be amended with the consent of the defendant in the averment of the Christian name of the person to whom the goods belong; and the fact that the defendant ob- the defendant. State v. Craighead, 32 Mo. 561. Florida. Under the Florida statute the inserting of a middle letter in the name of the accused may be struck out. Burroughs v. State, 17 Fla. 643. Pennsylvania. The statute provides for an amendment to correct a vari- ance "in the name or descriptionof any person or persons * * * stated or al- leged to be the owner or owners of any property * * * which shall be the subject of any offense charged therein." An indictment laid the property stolen as the property of A. and B. On the trial, the evidence showing that the property was stolen at the same time and place, it was not error to amend by laying special portions as the goods of A. and other portions as the goods of B. Rosenberger v. Com., 118 Pa. St. 77. An indictment may be amended by striking out the name of the alleged owner of stolen goods and inserting the words " some person unknown." Com. v. O'Brien, 2 Brewst. (Pa.) 566. In an indictment for selling liquor, the name of the person to whom the liquor was sold was left blank. On the trial, after a witness had been exam- ined, the court allowed a name to be inserted, and the decision was sus- tained under a statute providing that " It shall and maybe lawful for the court before whom the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prej- udiced in his defense, upon such merits to order such indictment to be amended according to the proof." Rough v. Com., 78 Pa. St. 495. After the jury are impaneled on the jected to the amendment, and only con- trial for a homicide, an amendment sented to it in order to avoid being bound over to answer a new indict- ment at the next term, does not render the allowance of the amendment im- proper. Ross v. State, 55 Ala. 177. Missouri. A mistake in an indict- ment which stated that the defendant with a knife did feloniously assault and wound one Dunlop, by means of which wounding the life of the said changing the time laid in the indict- ment may be made. Myers v. Com., 79 Pa. St. 308. Louisiana. The statute authorizes the correction of a variance in the statement of the ownership of prop- erty. An indictment for larceny may be amended in this respect, not merely in the name but in the ownership it- self. State v. Dominique, 39 La. Ann. Craighead was then and there endan- 323; State v. Ware, 44 La. Ann. 954; gered, etc., is cured by g 27, art. 4 of State v. Hanks, 39 La. Ann. 234. the act of Practice in Criminal Cases, Rev. Code, 1170, the mistake being An indictment for burglary ana lar- ceny may be repeatedly amended merely clerical and in no way tending during the trial of the case, in order to to prejudice the substantial rights of set forth the names of the real owners 694 In Criminal Proceedings. AMENDMENTS. Of Indictments. of the property charged to have been stolen. State v. Christian, 30 La. Ann. (Pt. I.) 367. Where a party indicted as E. Bu- chanan is arraigned and pleads as Amos Buchanan, which is his true name, the state, during the progress of the trial, may amend the indictment by setting out the true name under the express terms of Louisiana Rev. Stat., 1047. State v. Buchanan, 35 La. Ann. 89. Where an indictment correctly con- tains the defendant's name, but there is a variance on the endorsement, the latter may be corrected at any time to conform to the description in the body of the indictment. No advantage can be taken of the defective endorsement corrected and amended with the con- sent of the defendant in open court, aided and assisted by his counsel. State v. Anderson, 45 La. Ann. 651. An indictment for forgery contain- ing the purport or tenor of the instru- ment stated to have been forged, and setting forth the words of such instru- ment, may be amended during the trial by substituting the word "oblige" for the word " charge " at the conclu- sion thereof. Variance not material. Section 1047, R. S. Laws, provides for amendments to correct variances " in the name or description of any matter or thing, if such a variance is not ma- terial, or the defendant is not preju- diced," etc. State v. Sullivan, 35 La. Ann. 844. Virginia. Code, 3999, gives the court authority to correct a misnomer. An indictment against " S. C." may be amended so as to be against " S. S., alias S. C." Shifflett v. Com. (Va., 1894), 18 S. E. Rep. 838. Vermont. The statute provides that when a variance appears between the averments and evidence offered in proof in the name of any person al- leged to be the owner of any property which forms the subject of the offense charged, etc., the court, if it considers such variance not material to the merits, and the amendment cannot be prejudicial, may order an amendment. An indictment for the larceny of a trunk which was part of an estate, as first presented, alleged ownership thereof in the administrator of the estate, who was taking it to the person to whom it had been assigned. The administrator was a passenger, and the trunk baggage, on the train of a railroad company, in. whose posses- sion the trunk was when stolen. It was held that the court properly al- lowed the indictment to be amended by substituting as owner the name of the railroad company for that of the administrator, Acts 1882 permitting amendments in such cases when the trial court considers the amendment not prejudicial to the defendant. State v. Casavant, 64 Vt. 405. Mississippi. The Mississippi Code of 1880, 3081, provides that "Whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof, in the name of any person alleged to be the owner of any property, real or personal, which shall form the subject of any offense charged therein, it shall be lawful for the court, if it shall con- sider such variance not material to the merits of the case and that the de- fendant will not be prejudiced there- by in his defense on the merits, to order such indictment to be amended according to the proof on such terms, as to postponing the trial, as such court shall think advisable." Under this statute, an indictment for going upon the land of another may be amended by striking out the name of the owner of the land as therein stated and inserting that of the true owner as developed by the proof. Knight v. State, 64 Miss. 802. The name of the owner of stolen property may be amended. Haywood v. State, 47 Miss, i; Garvin v. State, 52 Miss. 207. See also Murrah v. State, 51 Miss. 675. An amendment of an indictment for selling liquor by striking out "and to divers other persons " is allowed. Rocco v. State, 37 Miss. 357. If, on a trial for murder, the defend- ant discloses that the Christian name of the deceased is erroneously written in the indictment, the court, upon mo- tion of the district attorney, may order it amended by substituting the real Christian name, and the trial should proceed unless the amendment causes surprise and consequent prej- udice to the defendant. Miller v. State, 68 Miss. 221. The name of the person assaulted may be changed, provided it is the same person. Miller v. State, 53 Miss. 403; Wood v. State, 64 Miss. 761. 695 In Criminal Proceedings. AMENDMENTS. Of Informations. in other respects where the defendant will not be prejudiced on the merits. 1 Where the identity of the particular indi- vidual is material and made a part of the offense charged as, for instance, the name of the female in an indictment for rape, 2 or the name of the person to whom liquor was sold in an indictment for an unlawful sale 3 a change in the name of the person has not been permitted. 2. Of Informations Distinguished from Indictments. Criminal informa- tions which are not found upon the oath of a jury may be amended by the court, and even by a single judge at chambers, at any time before trial ; 4 and the reason assigned for the differ- ence between indictments and informations in this respect is that the latter are originally framed by an officer of the government, while the former are the accusations of a number of men sworn to inquire and decide according to the evidence. 5 The mere omission of the word "manner" after the words "rude, angry, and threatening," in an indict- ment for exhibiting a deadly weapon, is a formal defect and the subject of amendment. Gomblin v. State, 45 Miss. 658, decided under a statute pro- viding that " After objection has been made by demurrer or motion to quash for any formal defect, the court may, if thought necessary, cause the indict- ment to be forthwith amended." 1. English Authorities. Statutory provisions of a similar description are contained in chap. 100 of 14 and 15 Vic. sec. i, and chap. 45 of 12 and 13 Vic. sec. 10. And under these provisions in Reg. v. Fullarton, 6 Cox C. C. 194, where the title to stolen property was laid in the wrong person, it was held that the indictment might be amended in this respect upon the trial. This practice was also fol- lowed in Reg. v. Vincent, 2 Den. C. C. 464. There the change was made from the name of Matthew Archard to London Dock Company. And a some- what similar change was allowed in Reg. v. Pritchard, 8 Cox C. C. 461, under a still earlier statute enacted during the reign of George IV. This practice was also followed in the case of an indictment with intent to kill in Reg. -v. Welton, 9 Cox C. C. 297. And the addition of the word "trustees" to the names of the per- sons mentioned in the indictment was permitted in Reg. v. Marks, 10 Cox C. C. 367. And in the description of the offices of certain justices named in an indictment for perjury in Reg. v. Western, n Cox C. C. 93. 2. State v. Morgan, 35 La. Ann. "39- 3. Blumenberg v. State, 55 Miss. 528. 4. State v. White, 64 Vt. 372, where, after plea and jury sworn, the defend- ant moved to dismiss on the ground that the prosecution was barred by the statute of limitations, and the court allowed the information to be amended by changing the date of the alleged offense. After Plea in Abatement. In State v. Washington, 15 Rich. (S. Car.) 39, it was held, upon a construction of statutory provisions, that an infor- mation for larceny was amendable after plea in abatement for misnomer by inserting the real name. After Plea in Bar. Under the Eng- lish practice, amendments of informa- tions are allowed after a plea in bar. Rex -v. Wilkes, 4 Burr. 2527. And even after objection by plea in abate- ment. Rex v. Seaward, 2 Ld. Raym. 1472. On the Trial. Although it is the general rule that no amendment of an information can be allowed after the trial has begun, it is the practice in Connecticut to allow an amendment in such a case after the trial has com- menced, the court in its discretion allowing reasonable delay if requested by the defendant. State v. Stebbins, 29 Conn. 463. 5. Rex v. Wilkes, 4 Burr. 2527; State v. Weare, 38 N. H. 314; Thomas v. State, 58 Ala. 365. Information to Remove Attorney. An information in proceedings to remove an attorney is amendable the same as 696 In Criminal Proceedings. AMENDMEA T TS. Of Informations. Amendments Discretionary. In the absence of statutory provisions regulating amendments of informations, the court may permit them to be amended to any extent consistent with the orderly conduct of judicial business, with the public interests, and with private rights. 1 But the court may refuse leave to amend; 2 and appeals by the state from adverse rulings are frowned upon in the appellate court, because the prosecuting officer may expedite the trial by submitting to the decision and instantly framing a new information. 3 a complaint in a civil action. Thomas v. State, 58 Ala. 365. 1. Bishop Cr. Pro. (3d ed.) 714, quoted in State v. Terrebonne, 45 La. Ann. 25, and State v. Doe, 50 Iowa 541. Trivial Amendments. An informa- tion charging the illegal sale of liquor may be amended by inserting the word "liquor" in the clause alleging a prior conviction when the informa- tion would be sufficient without it. State v. Nulty, 57 Vt. 543. In State v. Weare, 38 N. H. 314, an information for neglect to build a highway was amended by changing the alleged termini of the highway. On Appeal from a Justice. In State v. Merchant, 38 Iowa 375, it was held proper to amend an information by affixing the signature of the prose- cuting witness after trial before a justice and appeal to and before trial in the district court. And in State v. Doe, 50 Iowa 541, after conviction in the justice court and after a demurrer to the information had been sustained by the district court on appeal. After Motion to Quash. In Com. v. Lodge, 6 Gratt. (Va.) 699, an information for perjury was amended so as to conform to the presentment of the grand jury on which it was founded after the appearance of the defendant and motion to quash. After Verdict an information can- not be amended so as to allege the material facts constituting the offense. State v. Butcher, 79 Iowa no. Date of Offense. Where the original information laid the date of the offense on a day subsequent to the date of the information and the latter was amended by alleging the correct date, a trial under the amended information without arraignment or plea was held to be erroneous, as no issue was joined. People v. Moody, 69 Cal. 184. In a prosecution for a misdemeanor commenced in the county court and transferred to the circuit court at the instance of the defendant, the state- ment of the cause of complaint which the solicitor is required to make and which is analogous to an information at common law may be amended by leave of the court by averring the time when the offense was committed. Tatum v. State, 66 Ala. 465, after plea of the statute of limitations. Price of Liquors Sold. An informa- tion for selling liquors without a license was amended by inserting an allegation of the price for which the liquors were sold. Miles v. State, 5 Ind. 215. 2. State v. Terrebonne, 45 La. Ann. 25- After Offense Barred by Limitation. In Stale v. Rowley, 12 Conn. 101, it was held that an information is not amendable by adding a new count for the offense already charged after the statute of limitations has run against such offense. Additional Charges. In Com. v. Rodes, i Dana (Ky.) 595, the court refused to allow an information to be amended by making additional charges. Of Affidavits. An amendment of af- fidavits made as a part of criminal in- formations cannot be allowed. U. S. v. Tureaud, 20 Fed. Rep. 621. Where no Offense Charged. If the offense charged in the presentment does not amount to a misdemeanor, the court ought not to allow infor- mation to be amended. Com. v. Will- iamson, 4 Gratt. (Va.) 554. Changing Name of Alleged Owner. In State v. Van Cleve, 5 Wash. 642, if. was held that the Christian name of the owner of property alleged to have been stolen could not be changed from " Wm." to "Walter." 3. State v. Terrebonne, 45 La. Ann. 25. See, however, State v. Merchant, 697 In Criminal Proceedings. AMENDMENTS. Of Informations. Filing New Information. The prosecutor may be permitted to withdraw an information and file a new one irrespective of any question of amendment. 1 By Statute. In several states the amendment of informations is regulated by statute. 2 38 Iowa 375, where the refusal to al- low an amendment was reversed upon appeal by the state. 1. State v. Gile, 8 Wash. 12. 2. Texas. The Texas statute pro- vides that no matter of substance can be amended. Whether the substance can be amended by consent of the de- fendant, qu(Ere. Brown v. State, II Tex. App. 451. Failure to Allege Offense. An infor- mation which fails to state an offense cannot be amended. Bates v. State, 12 Tex. App. 26. Date of Offense. An amendment changing the allegedidate of the offense cannot be allowed. Goddard v. State, 14 Tex. App. 566; Huff -v. State, 23 Tex. App. 291. Complaint. If the complaint upon which the information is based is de- fective, a new one cannot be filed so as to sustain the information without bringing a new information. Paschal v. State, 9 Tex. App. 205. Showing the Court. If the informa- tion does not show that it was pre- sented in a court of competent juris- diction, as the statute requires, the defect is curable by amendment. Bowen v. State, 28 Tex. App. 498. Indorsement. Where by inadver- tence the county attorney indorsed on a substituted information a different number from that by which the case was originally entered upon the docket and the defense objected to the sub- stitute, it was held that the mistake should have been corrected upon mo- tion or by the court upon its own motion. Stiff v. State, 21 Tex. App. 255- Kansas. The Kansas Code Crim. Pro., 72, provides that "any infor- mation may be amended in matter of substance or form at any time before the defendant pleads, without leave. The information may be amended on the trial as to all matters of form at the discretion of the court when the same can be done without prejudice to the rights of the defendant. No amendment shall cause any delay of the trial unless for good cause shown by affidavit." See State v. Spencer, 43 Kan. 114. Implied Leave. An amendment filed without leave may by reason of sub- sequent motions and orders be con- sidered as having the leave of the court. State v. Spendlove, 47 Kan. 1 60. Date of Offense. It was held proper, after the jury had been impaneled and sworn, to permit an amendment of the information charging the offense as committed at a date prior to the date of the information instead of sub- sequently thereto as in the original information, the information thus amended being reverified and refiled. State v. Cooper, 31 Kan. 505. Name of Accused. The court may allow an information to be amended by inserting the name of the defend- ant in the body of the same before the defendant pleads thereto. State v. McLain, 43 Kan. 439. Verification. In State v. Gould, 40 Kan. 258, it was held not to be error to permit a slight amendment to be made to the verification of the infor- mation. Where the clerk fails to attach his signature and seal to the jurat of an affidavit verifying an information, and the defendant pleads not guilty to the information while so defective, it is not error for the court to permit the clerk, before the jury is called, to per- fect the jurat by attaching his signa- ture and seal; and this, notwithstand- ing the only evidence that the county attorney in fact swore to the affidavit subscribed by him before the filing of the information is the oral statement of the clerk, not under oath, that such was the fact. State v. Adams, 20 Kan. 311. Michigan. By express statute the defendant in an information has the same rights as to all proceedings therein as if prosecuted for the same offense upon indictment. Howell's Ann. Stat., 1882, 9550, 9551. The statute allows amendments to cure variances in the name of any county or place, * * * in the name or description of any person or body stated to be the owner of any property which is the subject of the offense charged or alleged to have 698 In Criminal Proceedings. AMENDMENTS. Of Informations. 3. Complaints, Warrants, etc. A complaint of a grand juror may be amended by leave of the court, where an indictment one offense, the information cannot be amended so as to charge him with a different offense subject to a different penalty. People v. Handley, 93 Mich. 46. After Evidence Closed. And an in- formation alleging no offense of which the court has jurisdiction cannot be amended, after the proofs are in, so as to charge a cognizable offense. Byrnes v. People, 37 Mich. 515. After Verdict. An information charging a statutory offense cannot be amended after verdict so as to in- clude another offense found by the jury. Turner v. Muskegon Circuit Judge, 88 Mich. 359. After Judgment. An information which does not allege an offense known to the law cannot after judgment be so amended as to charge one and sus- tain a conviction. Bickford v. Pec le, 39 Mich. 209. Wisconsin To Conform to Proof. An information charging the de- fendant with stealing a certain sum, the property of A., may be amended at the trial so as to charge the theft of a different sum, the property of A. and B., under Wisconsin Rev. Stat., 4703, authorizing amendments of in- formations to conform to the proof where the variance is immaterial or relates to the ownership of property described. Baker v. State (Wis., 1894), 59 N. W. Rep. 570. Name of Thief. The failure in an information for receiving stolen goods to aver who stole the property, or to negative knowledge on that subject, may be remedied by amendment. State v. Jenkins, 60 Wis. 599. Amendment Ex Mero Motu. A proper amendment of the information may be directed by the trial judge of his own motion. State v. Jenkins. 60 Wis. 599. Missouri. Under the Missouri stat- ute an informality in the affidavit may be cured by filing a new one. State v . McCray, 74 Mo. 303. Nebraska. The statute, after enu- merating certain imperfections which will not- invalidate an information, concludes: "Nor for any other de- fect or imperfection which does not tend to the prejudice of the substan- tial rights of the defendant upon the merits. Where an amendment was been injured by the commission of the offense, or the Christian or sur- name of any person, the name or de- scription of any thing, or the owner- ship of any property, and in all cases whenever the variance is not material to the merits of the case; and also where misnomer has been pleaded. Howell's Ann. Stat., 1882, 7537. Describing Offense. An amendment which only renders the charge more specific by describing the acts consti- tuting the same offense is proper. People v. McCullough, 81 Mich. 25. Intent. An information for embez- zling may be amended upon objection being raised before plea by charging the statutory intent. People v. Schultz, 85 Mich. 114. Date of Death. In an information for murder an amendment showing the true date of the death of the de- ceased is permissible. People v. Hamilton, 76 Mich. 212. Description of Property. In an in- formation for larceny a more particu- lar description of the property stolen may be set forth by amendment. People v. Price, 74 Mich. 37. Place of Offense. And an informa- tion charging larceny in one township may be amended by charging it to have been committed in another township in the same county. People v. Waller, 70 Mich. 237. Description of Note. In People v. Mott, 34 Mich. 81, certain words omitted in the description of a note which was alleged to have been fraudulently obtained were added by amendment. Former Marriage in Bigamy. In People v. Perriman, 72 Mich. 184, an information for bigamy was amended by changing the name of the county where the first marriage was alleged to have taken place. Date of Offense. An information charging the commission of an offense at a date subsequent to the filing of the information is cured by the statute which provides that no indictment shall be insufficient which states among other things that the offense was committed on an "impossible day." Cole v. People, 37 Mich. 544. Charging Different Offense. Where the accused waives a preliminary ex- amination and is informed against for 699 In Criminal Proceedings. AAIkl^ DAfJEJ\' TS. Complaints, Warrants, etc. or an information can be so amended. 1 But the complaint being upon the oath of the grand juror, it cannot be amended in the appellate court in substance where an indictment cannot be so amended. 2 Cases in various jurisdictions relating to the amendment of complaints, warrants, and other proceedings in inferior courts, or on appeal therefrom, are cited in the note. 3 allowed which was unnecessary there can be no prejudice. Braithwait v. State, 28 Neb. 832. Louisiana. On the trial under an information for shooting with a dan- gerous weapon, to wit, a pistol, the information may be amended by sub- stituting the word "gun" for " pistol." State -v. Finn, 31 La. Ann. 408. Date of Forged Bill. An amendment changing the date of the bill alleged to have been forged was allowed dur- ing the trial. State v. Snow, 30 La. Ann. 401. Indiana. In Indiana, where a de- fendant is charged before a justice of the peace with the offense of receiv- ing stolen goods and is recognized to appear in the circuit court, the state may there file an amended affidavit and information in which the accused is charged in separate counts with re- ceiving stolen goods and with the lar- ceny of the same goods. Kennegar v. State. 120 Ind. 176. 1. State v. Batchelder, 6 Vt. 479. 2. State v. Wheeler, 64 Vt. 569. 3. In North Carolina. The court may amend a justice's warrant in a crim- inal action in form or substance, but the amendment must not change the nature of the offense. North Carolina Code, 908; State v. Vaughan, 91 N. Car. 532; State v. Crook, 91 N. Car. 536; State v. Smith, 103 N. Car. 410; State v. Sykes, 104 N. Car. 695; State v. Wilson, 106 N. Car. 718; State v. Baker, 106 N". Car. 758; State v. Muse, 4 Dev. & B. (N. Car.), 319; State v. Cauble, 70 N. Car. 62; State v. Norman, no N. Car. 484, holding that it is not necessary that the amendment should have the concurrence of the justice or that the amended charge be resworn. The affidavit and warrant for selling liquors without a license may be amended. State v. Davis, in N. Car. 729. The superior courts have the power to amend a warrant by a justice of the peace against a person refusing to work the road by inserting the state as plaintiff instead of the overseer. State v. Cauble, 70 N. Car. 62. Kansas. Where a complaint be- fore a justice was defective but was amended and trial had without verifi- cation, it was proper for the district court on appeal to permit the filing of a new and verified complaint. State v. Hinkle, 27 Kan. 308. It was held in Burlington v. James, 17 Kan. 221, that where a defendant is tried, convicted, and sentenced by a police judge for the violation of a city ordinance and the defendant then" ap- peals to the district court and there the original complaint is quashed, it is error for the district court to per- mit a new and amended complaint to be filed in that court and to allow defendant to be tried, convicted, and sentenced on the new complaint, as the district court has no original jurisdic- tion therein. In Massachusetts the copies certified by a magistrate to the superior court in a criminal case maybe amended by him according to the truth, after the commencement of the trial there, and the defendant may be arraigned and tried on the amended papers. Com. v. Magoun, 14 Gray (Mass.) 398. In Michigan a justice may before a trial for larceny permit the amendment of a warrant so as to show the value of the property stolen; but if he does not do so, the circuit court on appeal cannot allow such amendment. Peo- ple v. Belcher, 58 Mich. 325. After the examination of a respond- ent on a charge of larceny, a variance between the complaint and warrant in stating the name of the owner of the property, he being described as Allen Bricker in the complaint and as Allen Brinker in the warrant, is properly corrected by the justice by amending the warrant to correspond with the complaint and the testimony given on the examination; and if such amend- ment is not made, the circuit court may make it under How. Stat., 9537- People v. Hilderbrand, 71 Mich. 313. Wisconsin. The Wisconsin statute provides that any court of record in which the trial of an indictment or in- formation is had may forthwith allow 700 In Criminal Proceedings. AMENDMENTS. Complaints, Warrants, etc. Amendment of Plea in Abatement. Following the practice in civil pro- ceedings, it has been held that a plea in abatement in a criminal case is not amendable. 1 an amendment in case of a variance between the statement in the indict- ment or information and the proof in the name or description of the person. On appeal from a conviction in a jus- tice court for an assault the circuit court may permit the complaint, war- rant, and proceedings to be amended so as to state correctly the name of the complaining witness. Rasmussen v. State, 63 Wis. i. An amendment of a misnomer in a complaint will relate back so as to protect the officer serving the warrant. Keehn r. Stein, 72 Wis. 196. Mississippi. In Rocco v. State, 37 Miss. 357, a prosecution for a misde- meanor, the state's attorney was per- mitted to withdraw his replication and file a new one after issue joined on the first. Vermont. Under Vermont Rev. Laws 3857, authorizing amendments to complaints by the district attorney in either a city or county court "ex- cept as to matters of substance," a complaint in the city court charging the defendant with keeping intoxicat- ing liquors contrary to law, and that he had been convicted for a like of- fense at a term of the county court "begun and holden at B. in this county on the first Tuesday" of a cer- tain month and year, may be amended on appeal to the county court so as to correspond with the record of such conviction when introduced in evi- dence, which showed that the term of court was begun on the third Tuesday of that month and year. State v. Sutton, 65 Vt. 439. When the complaint of a private prosecutor was sworn to before the warrant was issued, but no certificate of the oath was appended thereto, the defect was held to be one of form and amendable. State v. Freeman, 59 Vt. 66r. Georgia. An accusation in a city court was amended after the jury were sworn to conform to a prior agreement for such amendment by counsel for the prisoner, the first amendment under the agreement be- ing defective. Barlow v. State, 77 Ga. 448. 1. Newman v. State, 14 Wis. 393; King v. Cooke, 9 E. C. L. 263. 701 AMOUNT IN CONTROVERSY. By RICHARD F. KIMBALL. I. SCOPE OF SUBJECT, 703- II. AMOUNT CLAIMED, 703- 1. In General, 703. 2. When Claim is Unliquidated, 704. 3. In Actions Ex Delicto, 705. 4. In Suits on Bonds, 706. III. AMOUNT REMITTED, 707. 1. Jurisdiction Conferred, 707. 2. Jurisdiction Unaffected, 708. 3. Jurisdiction Ousted, 709. 4. Jurisdiction Not Conferred on Appeal, 710. IV. FICTITIOUS AMOUNT, 710. V. REAL AMOUNT, 712. 1. In General, 712. 2. Amount Must Appear, 716. 3. Amount Unaffectedly Agreement of Parties, 717. 4. Amount Not Dependent on Collateral Effect of Judgment. 718. VI. AMOUNT MUST BE PECUNIABY, 719. VII. ACCEUED INTEREST, 719- 1 . When Calculable, 7 1 9. 2. When Not Calculable Excluded by Statute, 720. nil. AGGREGATED AMOUNT, 721. 1. Several Plaintiffs, 721. 2. Several Defendants, 722. 3. Several Claims in One Suit, 722. IX. TlNAGGREGATED AMOUNT, 724- X. VALUE DISTINGUISHED FROM AMOUNT, 726. XI. AMOUNT IMMATERIAL, 728. XII. APPEALABLE AMOUNT, 731- 1. When Plaintiff Appeals, 731. 2. When Defendant Appeals, 732. a. No Counterclaim Filed, 732. b. Counterclaim Filed, 734. 3. In Intermediate Appeals, 735. XIII. STATUTORY AMOUNT LOCAL PROVISIONS, 735. As to Removal of Causes Affected by Amount, see REMOVAL OF CA USES. As to Costs Affected by Amount, see COSTS. 702 Scope of Subject. AMO UNT IN CONTRO VERS Y. Amount Claimed. I. SCOPE OF SUBJECT. While the subject of " Amount in Con- troversy" is exceedingly extended in its applications and rich in illustrations, it is necessarily at the same time limited to the set- tlement of no very large number of legal principles. To enunciate these, so far as they may be clearly deducible from reported cases, and to set forth the local and statutory provisions as appearing therein, will be the purpose of the following article, the scope of which will be found to be practically coincident with and de- pendent almost wholly upon a consideration of the question of the amount in controversy as affecting the jurisdiction of courts, original and appellate. II. AMOUNT CLAIMED 1. In General. It is the claim as pre- sented, not the claim as decided or allowed, which primarily de- termines the question of jurisdiction in the trial or lower court, and hence constitutes therein the amount in controversy. 1 Kentucky. Howke -v. Buford, 8 B. Mon. (Ky.) 38; Sams v. Stockton, 14 B. Mon. (Ky.) 187; Burbage v. Squires, 3 Mete. (Ky.) 77. Louisiana. McDowell's Succession, 35 La. Ann. 1025. Maine. Cole v. Hayes, 78 Me. 539. Maryland. Abbott v. Gatch, 13 Md. 314, 71 Am. Dec. 635. Michigan. Raymond v. Hinkson, 15 Mich. 113; Cilley v. Van Patten, 68 Mich. 80. Minnesota. Heckling. Ess, i6Minn. 51- Mississsippi. May v. Williams, 6l Miss. 125, 48 Am. Rep. 80. Missouri. Langham v. Boggs, I Mo. 337; Henks v. Debertshauser, I Mo. App. 402. Nebraska. Spielman v. Flynn, 19 Neb. 342; Beach v. Cramer, 5 Neb. 98. New Hampshire. Haynes v. Brown, 36 N. H. 545- New Jersey. Johnson v. Colbaugh, i N. J. L. 55- New York. Cahill v. Dolph, I Johns. Cas. (N. Y.) 333; Stillson v. Sanford, 3 Cai. (N. Y.) 174; Vaughn v. Ely, 4 Barb. (N. Y.) 159; Shackel- ton v. Hart, 12 Abb. Pr. (N. Y. Su- preme Ct.) 325, note; Jaynes v. Jaynes (Orleans County Ct.) 8 Civ. Proc. Rep. 99; Farley v. Gibbs (Supreme Ct ) 4 N. Y. Supp. 353. North Carolina. Katzenstein v. Raleigh, etc., R. Co., 84 N. Car. 688; Brantley v. Finch, 97 N. Car. 91. Ohio. McKibben v. Lester, 9 Ohio St. 627. Pennsylvania. Odell v. Culbert, 9 W. & S. (Pa.) 66, 42 Am. Dec. 317; Curtis v. Kearney, 2 Pitts. (Pa.) 87. 1. In the leading case of Kanouse v. Martin, 15 How. (U. S.) 198, Curtis, J., said: "The words 'matter in dis- pute" * * * do not refer to dis- putes in the country, or the intentions or expectations of the parties con- cerning them, but to the claim pre- sented on the record to the legal con- sideration of the court." And in Gordon v. Longest, 16 Pet. (U. S.) 97, McClean, J., said: "The damages claimed by the plaintiff in his writ gives the jurisdiction to the court whether it be an original suit in the circuit court or brought here on petition from a state court." West v. Woods, 18 Fed. Rep. 665. To same effect see: United States. Hardin v. Cass County, 42 Fed. Rep. 652. California. Jackson v. Whartenby, 5 Cal. 94; Lord v. Thomas (Cal., 1891), 27 Pac. Rep. 410. Connecticut. Judd v. Bushnell, 7 Conn. 205; Skinner v. Bailey, 7 Conn. 496; Nichols v. Hastings, 35 Conn. 546; Grether v. Keock, 39 Conn. 133; Hunt v. Rockwell, 41 Conn. 51; Sulli- van v. Vail, 42 Conn. 90. South Dakota. Plunkett v. Evans (S. Dak., 1892), 50 N. W. Rep. 961. Florida. McLean v. State, 23 Fla. 281. Illinois. Bates v. Bulkley, 7 111. 389; Thompson v. Turner, 22 111. 389; Wilson v. McKenna, 52 111. 43. Indiana. Chandler v. Davidson, 6 Blackf. (Ind.) 367; Guard v. Circle, 16 Ind. 401. Iowa. Bush v . Elsor, Morris (Iowa) 316; Galley v. Tama County, 40 Iowa 49; Moran v. Murphy, 49 Iowa 68. 703 Amount Claimed. AMOUNT IN CONTROVERSY. Unliquidated. Counterclaims and Set-offs when introduced by a defendant are as to him the amount in controversy. 1 2. When Claim is Unliquidated. The rule is almost without exception that the amount demanded by the plaintiff, and not the amount of his recovery, determines the question of the court's jurisdiction when the suit is for unliquidated damages, irrespective of the character of the action, whether it be in contract or in tort. 8 South Carolina. Goldthwaite v. Dent, 3 McCord (S. Car.) 296. Texas. Austin v. Jordan, 5 Tex. 130; Sherwood v. Douthit, 6 Tex. 224; Little v. State, 75 Tex. 616; Lemar v. Borden, 83 Tex. 620. Tennessee. Spurlock v. Fulks, I Swan (Tenn.) 289. Vermont. Doubleday v. Marstin, 27 Vt. 488. Virginia. Meff v. Talbot, I Va. Cas. 140. Washington. Ebey v. Engle, I Wash. Ter. 72. Wisconsin. Elderkin v. Sperbeck, i Chand. (Wis.) 69; McCormick v. Rob- inson, i Chand. (Wis.) 254; Keegan v. Singleton, 5 Wis. 115. England. Branker v. Massey, 2 Price 8; Oulton v. Perry, 3 Burr. 1592. Amount Need Not Be in Declaration. It may be set forth in a summons or in the writ. Clay v. Barlow, 123 Mass. 378; Allen v. Stokes, I Hayw. (N. Car.) 142: Morris v. O'Briant, 94 N. Car. 72; Brantley v. Finch, 97 N. Car. 92; Todd v. Gates, 20 W. Va. 464. Or in interrogatories filed in a garnish- ment proceeding. Moore v. Woodruff, 5 Ark. 214. Erroneous Claim. Even when the amount as claimed is manifestly an error, still it is determinative of the jurisdiction. Mitchell v. Smith, 24 Ind. 252; Wood v. Lovett, I Penny (Pa.) 51. Amount Alternatively Stated, as, for instance, "not more than $500 or less than $400," sufficiently shows the amount claimed as being within a court's jurisdiction whose maximum is $500. Welles v. Allen, 41 Conn. 140. The words "and over" in a claim "of $100 and over," held to be void for uncertainty, the amount in contro- versy, as affecting jurisdiction, being $100. Rockwell v. Perine, 5 Barb. (N. Y.) 573. See also Dwyer v. Rath- bone (Supreme Ct.) 2 N. Y. Supp. 170; Deloatch v. Coman, 90 N. Car. 186 Wrong Amount Claimed cannot be subsequently cured by a verdict or judgment for a correct jurisdictional amount. Hoit v. Molony, 2 N. H. 322; Gillett v. Richards, 46 Iowa 652. Nor by any subsequent act of the plaintiff pendente lite. Hynds v. Fay, 70 Iowa 433; Burbage v. Squires, 3 Mete. (Ky.) 77; Talbot v. Robinson, 42 Vt. 698. 1. Nichols v. Ruckells, 4 111. 298; Gharkey v. Halstead, i Ind. 389 ; State v. Neumeyer, 51 N. J. L. 299; Wood v. O'Ferrall, 19 Ohio St. 427; Holden v. Wiggins, 3 P. & W. (Pa.) 469; Milliken v. Gardner, 37 Pa. St. 456. Sum Recovered and not the damages claimed was held to be the test of a justice's jurisdiction in an action on a quantum meruit. . Power v. Rockwell, 39 Wis. 585; Darling v. Conklin, 42 Wis. 478; Crabtree v. Moore, 7 Ark. 74; Page v. Ellis, 9 Cal. 248; Brady v. Smith, i Rob. C. C. (N. Y.) 175. In Maryland, in actions ex contractu, as distinguished from those arising ex delicto, it is the recovery and not the claim which determines the jurisdic- tion. O'Reilley v. Murdoch, i Gill (Md.) 23; Beall v Black, i Gill (Md.) 203; Carter v. Tuck, 3 Gill (Md.) 248; Ott v. Dill, 7 Md. 251. Compare Bushey v. Culler, 26 Md. 552. 2. Alabama. Carters. Dade, i Stew. (Ala.) 18; Howard v. Wear, Minor (Ala.) 84; Curtis v. Gary, Minor (Ala.) no; Cummings v, Edmunson, 5 Port. (Ala.) 145- California. Bradley v. Kent, 22 Cal. 169; Solomon v. Reese, 34 Cal. 28; Bailey v. Sloan, 65 Cal. 387; Perkins v. Rails, 71 Cal. 87. Connecticut. Nichols v. Hastings, 35 Conn. 546; Andrew v. Babcock, 63 Conn. 109. Georgia. Tyler Cotton Press Co. v. Chevalier, 56 Ga. 494. Kentucky. Singleton v. Madison, i Bibb (Ky.) 342; Hume v. Ben, i Bibb (Ky.) 402; Hambell v. Hamilton, 3 704 Amount Claimed. A MO UNT IN CONTRO VERS Y. Ex Deiicto. - 3. In Actions Ex Deiicto. Actions ex delicto are from their very nature usually actions for the recovery of unliquidated and prob- lematical damages; hence the rule already enunciated, that it is the sum demanded and not the amount of recovery which deter- mines the jurisdiction vel non of the trial court, is peculiarly applicable to them. 1 Dana(Ky.) 501; Craig v. Street, 2 Bibb (Ky.) 265; Johnston v. Louisville, n Bush (Ky.) 527. Louisiana. Groebel v. Risetroph, 35 La. Ann. 490. Minnesota. Barber v. Kennedy, 18 Minn. 216. Mississippi. May v. Williams, 61 Miss. 125, 48 Am. Rep. 80. Nevada. Kleni v. Allenbach, 6 Nev. 159- North Carolina. Winslow v. Weith, 66 N. Car. 432; Latham v. Rollins, 72 N. Car. 454; Burbank v. Beaufort County, 92 N. Car. 257; Powell v. Allen, 103 N. Car. 46. Oregon. Corbell^. Childers, 17 Ore- gon, 528. Pennsylvania. Kline v. Hood, 9 S. & R. (Pa.) 294. Texas. Dwyer v. Brenham, 70 Tex. 30; Tidball -v. Eichoff, 66 Tex. 58. United States. Martin v. Taylor, I Wash. (U. S.) i; Culver v. Crawford County, 4 Dill. (U. S.) 239; Lee v. Watson, i Wall. (U. S.) 339; Kanouse v. Martin, 15 How. (U. S.) 198; Schacker v. Hartford F. Ins. Co., 93 U. S. 241; Gray v. Blanchard, 97 U. S. 565; Schunk v. Moline, etc., Co., 147 U. S. 500; West -v. Woods, 18 Fed. Rep. 665; American Fertilizing Co. v. Board of Agriculture, 43 Fed. Rep. 609; Hat-Sweat Mfg. Co. v. Porter, 46 Fed. Rep. 757- Vermont. Bell v. Mason, 10 Vt. 509; Spafford v. Richardson, 13 Vt. 245; Wrightman v. Carlisle. 14 Vt. 296; Brainard v. Austin, 17 Vt. 650; Joyal v. Barney, 20 Vt. 154; Stanley v. Barker, 25 Vt. 507; Powers v. Thayer, 30 Vt. 361; Miller v. Livingston, 37 Vt. 467; Scott v. Moore, 41 Vt. 205, 98 Am. Dec. 581; Drown v. Forrest, 63 Vt. 557- Virginia. Newsum v. Pendred, 2 Va. Cas. 93. Wisconsin. Du Bay v. Gould, 3 Pin. (Wis.)468. Compare Fortune v. Howard, 4 J. J. Marsh. (Ky.)i7i. Amendments Allowed. In an action for the specific performance of a con- tract for the sale of land, where the bill is silent as to the value thereof, which in such a case is the amount in controversy, and the contract pro- duced discloses such value to be only $1000, the bill can be amended so as to give a Circuit Court of the United States jurisdiction under act of March 3, 1887, which fixes minimum limit at sums in excess of $2000 by alleging present value of land to have increased to $3000. Johnson v. Trippe, 33 Fed. Rep. 530; State v. Voorhies, 34 La. Ann. 1151. So likewise where a suit in damages to property is brought in a Circuit Court of the United States subsequent to the passage of the act of March 3, 1887, and the ad damnum is laid at $1500, in ignorance of the change made by said act in the juris- dictional amount requisite, namely, from sums in excess of $500 to sums in excess of $2000, the plaintiff may ob- tain, when defendants move to dismiss the cause, leave to amend his ad dam- num so as to give the court jurisdic- tion, as it does not appear but that the damages recovered might be larger than originally claimed. Davis v. Kansas City R. Co., 32 Fed. Rep. 863. See also Van Clief v. Van Vechten, 130 N. Y. 571; McDonald v. Truesdale (unreported), in N. Y. Superior Court in the year 1876. Compare Mclntyre v. Carriere, 17 Hun (N. Y.) 64. See AMENDMENTS. 1. Alabama. Kings'. Farmer, 34 Ala. 416; Mills v. Long, 58 Ala. 458; Haws v. Morgan, 59 Ala. 508; Morris v. Robinson, 80 Ala. 291; Memphis, etc., R. Co. v. Hembree, 84 Ala. 182. Arkansas. Little Rock, etc., R. Co. v. Manees, 44 Ark. 100. California. Solomon v. Reese, 34 Cal. 28; Gorton v. Ferdinando, 64 Cal. ii ; Greenbaum v. Martinez, 86 Cal. 459- Georgia. Velvin v. Hall, 78 Ga. 136. Indiana. Short v. Scott, 6 Ind. 430. Kentucky. Singleton v. Madison, i Bibb (Ky.) 342; Hambell v. Hamilton, 3 Dana (Ky.) 501; Aulick v. Adams, 12 B. Mon. (Ky.) 104. i Encyc. PI. & Pr. 45. 75 Amount Claimed. A MO UNT IN CONTRO VERSY. In Suits on Bonds. 4. In Suits on Bonds. In suits on bonds it is as a rule not the penalty named therein which determines jurisdiction, but the amount of the damages claimed, the penalty being considered in the nature of a collateral security for the debt. 1 Massachusetts. Hapgood z>. Doherty , 8 Gray (Mass.) 373 ; Ladd v. Kimball, 12 Gray (Mass.) 139 ; Ashuelot Bank V. Pearson, 14 Gray (Mass.) 521. Louisiana. Oakey v. Aiken, 12 La. Ann. II. Michigan. Rosevelt v. Hanold, 65 Mich. 414. Minnesota. Turner v. Holleran, 8 Minn. 451; Greenman v. Smith, 20 Minn. 418. Nebraska. Lawrence v. Curtis, 13 Neb. 515. New York. Bellinger v. Ford, 14 Barb. (N. Y.) 250; Yager v. Hannah, 6 Hill (N. Y.) 631. North Carolina. Bullinger v. Mar- shall, 70 N. Car. 520 ; McDonald v. Cannon, 82 N. Car. 245; Womble v. Leach, 83 N. Car. 84; Ashe v. Gray, 88 N. Car. 190; Noville v. Dew, 94 N. Car. 43; Harvey v. Hambright, 98 N. Car. 446; Edwards v. Couper, 99 N. Car. 421; Long v. Fields, 104 N. Car. 221 ; Bowers v. Richmond, etc., R. Co., 107 N. Car. 721. Pennsylvania. Byrne v. Gordon, 2 Brown (Pa.) 271: Strutzer v. Morgan, 2 Brown (Pa.) 38; Matlack v. Brown, 2 Miles (Pa.) 15; Ancora v. Burns, 5 Binn. (Pa.) 522; McKinney v. Allen, 31 Leg. Int. (Pa.) 373; Richards v. Gage, I Ashm. (Pa.) 192. Rhode Island. Edwards v. Hop- kins, 5 R. I. 138. Texas. Bridge v. Ballew, II Tex. 269; Ellett v. Powers, 8 Tex. 113; Dwyer v. Bassett, 63 Tex. 276. United States. Murphy v. How- ard, I Hempst. (U. S.) 205; Hynes v. Briggs, 41 Fed. Rep. 468; Smith v. Greenhow, 109 U. S. 669 ; Barry v. Edmunds, 116 U. S. 550. Vermont. Montgomery v. Edwards, 45 Vt.75; Smith w. Fitzgerald, 59 Vt. 451. Compare Froelich v. Southern Ex- press Co., 67 N. Car. I. Thus, in an action on the case in which damages were laid at a sum sufficient to give jurisdiction to the court, the court said: "The plaintiff * * * is prima facie entitled to sue, * * * his demand being above thai fixed by the act in such cases. But even if he should obtain a verdict for a less sum * * * it would seem to be straining the interpretation of the act to suffer the jurisdiction of the court to depend upon a rule so uncertain and capricious as the amount of dam- ages in cases of tort." McGehee v. Draughon (1816-1818), 2 Law Repos. (N. Car.) 260. Replevin. Value as Claimed in actions of replevin, being the equivalent of the damage claimed in actions of tort, generally forms the amount in contro- versy as distinguished from what may be the real value of the property. Markin v. Jornigan, 3 Ind. 548; Bainum V. Small, 4 Ind. 49 ; Gott- schalk v. Klinger, 33 Mo. App. 410; Malone v. Hopkins, 40 Mo. App. 331; Stevens v. Chase, 61 N. H. 340; Fen- ton v. Harred, 17 Pa. St. 158; Darling v. Conklin, 42 Wis. 478. Compare Rochester v. Roberts, 29 N. H. 360. Damage Claim not Allegations of value, prevails on a question of jurisdiction. Smith v. Northern Pac. R. Co. (N. Dak., 1892), 53 N. W. Rep. 173. And where in an attachment for a debt affecting property it is not the value thereof but the amount of debt claimed to be satisfied thereout which forms the amount in controversy. Hoppe v. Byers, 39 Iowa 573. Compare De Camp v. Miller, 44 N. J. L. 617. Damage Claim and not the Evidence thereof produced at the trial consti- tutes the jurisdictional amount in con- troversy. Henderson v. Desborough, 28 Mich. 170; Adams v. Spaulding, 64 N. H. 384; Dennis v. Crittenden, 42 N. Y. 542; Burr v. Bayne, 10 Watts (Pa.) 299; Stewart v. Baltimore, etc., R. Co., 33 W. Va. 88. But on the other hand, in Bazire v. Barry, 3 S. & R. (Pa.) 461, in which case plaintiff sued in trespass q. c. f. and d. b. ., and the cause was arbitrated under a special act which made it unnecessary to file in such cases any declaration, and it was held that, inasmuch as no claim was therefore made by the plain- tiff, he should not be thereby preju- diced, but that the amount of his de- mand could be shown by parol evidence of what was exhibited before the arbi- trators in order to determine the juris- diction of the court vel non to finally adjudicate the matter. But see Warfel v. Beam, 3 P. & W. (Pa.) 397. 1. Thus, for example, in Shattuck v. 706 Amount Eemitted. AMOUNT IN CONTROVERSY. Jurisdiction. III. AMOUNT REMITTED 1. Jurisdiction Conferred. The rule also pretty generally obtains that one may waive a portion of the amount in controversy where that amount is greater than the court's jurisdiction in order to confer jurisdiction, provided this is done bona fide and with no fraudulent intent. 1 Miller, 50 Miss. 386, where "a bond of indemnity had been given the sheriff, who had levied on personal property which was claimed by J., upon trial of the claimant's issue, the verdict and judgment were in her favor. She and her husband then brought suit before the justice of the peace on the bond (which was in the penalty of $500) for illegal levy on her property," in which suit the demand was for $150 damages, and the court said: "The amount in controversy is the principal of the amount demanded * * * the $150 as damages for the tortious act of the sheriff * * * which sum is within the justice's jurisdiction." State z/.Luckey, 51 Miss. 528; Rawles v. People, 2 Colo. App. 501; Bowden v. Taylor, 81 Ga. 199. So also Paul v. Arnold, 12 Ind. 197, was " an action on a delivery bond," in which "the complainant set out a judgment for a certain sum, and then the bond and then the breach; the penalty was for an amount beyond the jurisdiction of the court, but the judgment was not," and it was held that the latter was the amount in con- troversy determinative of the court's jurisdiction. Washburn v. Payne, 2 Blackf. (Ind.) 216; Anderson v. Farns, 7 Blackf. (Ind.) 343 ; Snowhook v. Dodge, 28 111. 63; Stone v. Murphy. 2 Iowa 35; Murfree on Official Bonds, pars. 479, 480; Holt v. McLean, 75 N. Car. 347; Gray v. Stafford, 52 Mich. 497; Sharpless v. Hopkins, i T. & H. Pr. (Pa.) 26; Bloomer v. Laine, 10 Wend (N. Y.)525; Cavender v. Ward 28 S. Car. 470; Fowler v. McDaniel, 6 Heisk. (Tenn.) 529; State v. Lambert, 24 W. Va. 399; U. S. v. McDowell, 4 Cranch (U. S.) 316; Postmaster-Gen. v. Cross, 4 Wash. (U. S.) 326; Buechel v. Buechel, 65 Wis. 532. And in Dick v. Gaskill, 2 Whart. (Pa.) 184, the amount in controversy, as affecting jurisdiction, was held to be the dam- ages claimed, although these were treble the amount of the penalty named in the bond in litigation. But on the other hand, in Morris v. Saunders, 85 N. Car. 138, the court said: "The principal of the bond sued on was properly the sum demanded; * the question of jurisdiction could not be allowed to depend upon the claim made in the plaintiff's complaint or in anywise to fluctuate according to the will of the parties or subsequent circumstances, but must be fixed at the time of the contract made." Hedge- cock v. Davis, 64 N. Car. 650; Fell v. Porter, 69 N. Car. 140; State v. Rous- seau, 71 N. Car. 194; Coggins v. Har- rell, 86 N. Car. 317; Joyner v. Roberts, 108 N. Car. 174; Joyner v. Roberts, 112 N. Car. in; Snowhook v. Dodge, 28 111. 63; Com. v. Bohon, i Litt. (Ky.) 22; Sims v. Harris, 8 B. Mon. (Ky.) 55; Bishop v. Freeman, 42 Mich. 533; Heath v. Blaker, 2 Va. Cas. 215; Pit- man v. Dwyer, 8 Mo. App. 570; St. Louis v. Fox, 15 Mo. 71. The Real Debt, Not the Claim or the Penalty. In an action of covenant on a writing obligatory for $28 in a court whose minimum limit in amount was $100, to which there was a plea in abatement to the jurisdiction, and to this a demurrer by the plaintiff, this demurrer sustained below was upon an appeal by the defendant reversed and overruled, the appellate court holding that the amount of the debt on penalty, being a sum certain, con- stituted the amount in controversy. Crabtree v. Moore, 7 Ark. 74; Free- denbery v. Meteer, 4 Clark (Pa.) 182; Coates v. Cork, i Miles (Pa.) 270; Edgerton v. Smith, 35 Vt. 573. Penalty Raises a Presumption of the Claim. In a suit on a replevin bond the penalty therein raises the pre- sumption that the value of the prop- erty is one-half the amount thereof, and this value so presumed and not the value alleged furnishes the amount in controversy. Tyler v. Bowlus, 54 Ind. 333. Amount of Claim Uncertain or Not Al- leged. Where the amount of the claim is uncertain or there is a failure to set forth any claim, the penalty governs on a question of jurisdictional amount. Beard v. Kinney, 6 Blackf. (Ind.) 425; Forrester v. Alexander, 4 W. & S. , (Pa.) 311. 1. Texas. Alexander v. Thompson, 38 Tex.533; Fuller z/.Sparks, 39 Tex. 136. 707 Amount Kemitted. AMOUNT IN CONTROVERSY. Jurisdiction. 2. Jurisdiction Unaffected. Based upon the well-established prin- ciple that, jurisdiction having once attached, every presumption Alabama. King v. Dougherty, 2 Stew. (Ala.) 487; Crabtree v. Cliatt, 22 Ala. 181; Solomon v. Ross, 49 Ala. 198; Wharton v. King, 69 Ala. 365. Georgia. Wilhelms v. Moble, 36 Ga. 599; Stewart v. Thompson, 85 Ga. 829. Illinois. Bates v. Bulkley, 7 111. 389; Ellis v. Snider, I 111. 336; Hugue- nin v. Nicholson, 2 111. 575; Simpson v. Updegraff, 2 111. 594; Korsoski v. Foster, 20 111. 32; Raymonds. Strobel, 24 111. 113; Carpenter v. Wells, 65 111. 451. Indiana. Epperly v. Little, 6 Ind. 344- Iowa. Culbertson v. Tomlinson, Morris (Iowa) 404; Stone v. Murphy, 2 Iowa 35. Kentucky. Tudder v. Warren, 6 J. J. Marsh. (Ky.) 9 3. Minnesota. Lamberton v. Raymond, 22 Minn. 129. Missouri. Hempler v. Schneider, 17 Mo. 258; Denny v. Eckelkamp, 30 Mo. 140; Matlack i>. Lare, 32 Mo. 262; Burden v. Hornsby, 50 Mo. 238. New York. Bowditch v. Salisbury, 9 Johns. (N. Y.) 366; Bennetts. Inger- soll, 24 Wend. (N. Y.) 113. North Carolina. M'Rae v. M'Rae, 3 Dev. & B. (N. Car.) 85; Derr z/. Stubbs, 83 N. Car. 539. Pennsylvania. Herbert v. Conrad (Pa.), i Am. L. Reg. 440; Baer v. Gar- rett, 2 Leg. Chron. (Pa.) 207; Cleaden v. Yeats, 5 Whart. (Pa.) 94; Evans v. Hall, 45 Pa. St. 235. Tennessee. Carraway v. Burton, 4 Humph. (Tenn.) 108. United States. Witt v. Hereth, 6 Biss. (U. S.) 474. Vermont. Stevens v. Howe, 6 Vt. 572; Herren v. Campbell, 19 Vt. 23; Danforth v. Streeter, 28 Vt. 490. England. Hill v. Swift, 10 Exch. 726; Isaacs v. Wyld, 15 Jur. 1135. Contra, Tolbert v. Yocum, 2 Leg. Chron. (Pa.) 319. Thus, for example, it was held in Blakenship v. Adkins, 12 Tex. 536, " where it becomes necessary to sue for the recovery of an amount remain- ing due upon an indebtedness, origin- ally within the jurisdiction of the Dis- trict Court, if the suit is upon the 'original cause of action, it must be brought in that court, though ^ the debt may have been reduced by pay- ment to a sum within the jurisdiction of a justice of the peace." Credits or Payments admitted or proven pendente lite, by which the amount originally in excess of the jurisdictional limit is reduced to a sum within that limit, will cause the court's jurisdiction to attach. Baird v. Nich- ols, 2 Port. (Ala.) 186; Nichols v. Mc- Abee, 30 Ga. 8; Harris v. Jenks, 3 111. 475; Seymour v. Seymour, 31 111. App. 227; Newland v. Nees, 3 Blackf. (Ind.) 460; Collins v. Shaw, 8 Ind. 516; Brown v. Lewis, 10 Ind. 232; Harvey v. Ferguson, 10 Ind. 393; Hall v. Biever, Morris (Iowa) 113; Cochran v. Glover, Morris (Iowa) 151; Glass v. Moss, i How. (Miss.) 519; State v. Neumeyer, 51 N. J. L. 299; Hearman v. Snyder (Supreme Ct.), 3 N. Y. Supp. 94; Duer v. Seydell, 20 Tex. 61 ; Bower v. McCormick, 73 Pa. St. 427; Felt v. Felt, 19 Wis. 193; Howard v. Mans- field, 30 Wis. 75. Compare, contra, Askew v. Askew, 49 Miss 301; Martin v. Harden, 52 Miss. 694; Fenn v. Harrington, 54 Miss. 733; Stephen v. Eiseman, 54 Miss. 535; Milbanks v. Coonley (Su- preme Ct.), 2 N. Y. Supp. 167; Waldo v. Jolly, 4 Jones (N. Car.) 173; Moore v. White, ii W. N. C. (Pa.) 206; Wood- ward v. Garner, 2 Pin. (Wis.) 28; Donohoe -v. Donohoe, 16 L. R. (Ir.) 135; Abney v. Whitted, 28 La. Ann. 818. A Voluntary Credit may be entered by the plaintiff upon his cause of ac- tion for the purpose of conferring jurisdiction upon a justice of the peace. Phillips v. Fitzpatrick, 34 Mo. 276. See tontra,Ca.rey v. Garardville, 1 Leg. Chron. (Pa) 170; James v. Frick, 12 Phila. (Pa.) 443; Avards v. Rhodes, 8 Exch. 312. A Discount may be made by the de- fendant upon a plaintiff's demand in an action ex contractu, and by this means the jurisdiction of a court se- cured. Coldwell v. Garmany, 3 Hill (S. Car.) 202. Waiver of Interest. Interest which is due and demandable may be volun- tarily relinquished in order to reduce the amount to a sum within a court's jurisdiction. Simpson v. Updegraff, 2 111. 594; Bates v. Bulkley, 7 111. 389; Hopper v. Steelman, 3 N. J. L. 466; 708 Amount Eemitted. AMOUNT IN CONTROVERSY. Jurisdiction. of law is in favor of its continuance, is the generally accepted doc- trine that where a suit is commenced for an amount within the jurisdiction of a court, although that amount be reduced below the limited sum, nevertheless the jurisdiction to hear and deter- mine the cause remains unaffected. 1 3. Jurisdiction Ousted. But while the weight of authority pre- ponderates in favor of the continuance of jurisdiction, notwith- Saddle River v. Colfax, 6 N. J. L. 115; De Camp v. Miller. 44 N. J. L. 617; Bower v. McCormick, 73 Pa. St. 427; Evans v. Hall, 45 Pa. St. 235; Kraus v. Bickhart, i Chester Co. Rep. (Pa.) 479; Quigley v. Quigley, 10 W. N. C. (Pa.) 388; Varney v. Vosch, 3 Hill (S. Car.) 237; Parkhurst v. Spalding, 17 Vt. 527; Paige v. Morgan, 28 Vt. 565. But compare Hampton v. Dean, 4 Tex. 455- Waiver of Amount of Recovery. Whe re the judgment is in such a sum that the court cannot enforce it and can entertain no further proceedings with reference to it, the plaintiffs may re- linquish the excess and restore the jurisdiction. Henderson v. Plumb, 18 Ala. 74; Hunter v. Sherman, 3 111. 539; Stephens v. Sweeney, 7 111. 375; Linder v. Monroe, 33 111. 388; Hill v. Wilkinson, 25 Neb. 103. But see, con- ira, Eacrit v. Keen, 4>J. J. L. 203; Put- nam v. Shelop, 12 Johns. (N. Y.) 435. So also the court may of its own mo- tion, in such a case, remit the excess or presume the excess to be remitted. Litchfield v. Daniels, i Colo. 268; Giles v. Spinks, 64 Ga. 205; Velvin v. Hall, 78 Ga. 136; Shaw v. Roberts (Supreme Ct.), 14 N. Y. Supp. 579; Porter v. Grimsley, 98 N. Car. 550; Bodger v. Nicholls, 28 L. T. N. S. 441. Divided Debt. In Herrin v. Bucke- lew, 37 Ala. 585, it was held that where several notes each on its face within a justice's jurisdiction, but in the ag- gregate in excess thereof, are made to secure the payment of a single debt, nevertheless a justice may entertain two separate suits thereon, instituted on the same day, because one may split up his debt into several demands, it being equivalent to remitting a por- tion of a claim. Dews v. Eastham, 5 Yerg. (Tenn.) 297. But see, contra, More v. Woodruff, 5 Ark. 214; Walton v. Vanhorn, i Phila. (Pa.) 377; Rich- ards v. Marten, 23 W. R. 93. See a!so/0j/, notes to VIII. AGGREGATED AMOUNT, 3. Several Claims in one Suit, pp. 722, 723- Amount Reduced by Set-off. When the amount has been reduced by a set- off successfully pleaded or admitted by the plaintiff, it was held that such reduction did not avail to confer juris- diction. Jones -v. Stauffer, i Leg. Gaz. (Pa.) 91; James v. Frick, 3 W. N. C. (Pa.) 291. See/0j/, this article," Juris- diction Unaffected," and notes. 1. Sanborn v. Contra Costa County, 60 Cal. 425; McVey v. Johnson, 75 Iowa 165; Wright v. Potomska Mills Corp., 138 Mass. 328; Best v. Best, 16 Mo. 530; Funk -v. Funk, 35 Mo. App. 246; Butcher v. Smith, 29 Ohio St. 604; Davis v. Pinckney, 20 Tex. 340. See also Goldthwaite v. Dent, 3 McCord (S. Car.) 296; Watts v. Harding, 5 Tex. 386. Payments Fendente Lite proven or ad- mitted do not affect a jurisdiction once acquired. Rae v. Grand Trunk R. Co., 14 Fed. Rep. 402; Lozano v. Wehmer, 22 Fed. Rep. 755; Fuller v. Metropolitan L. Ins. Co., 37 Fed. Rep. 163; Cilley v. Van Patten, 68 Mich. 80; Simmons v. Terrell, 75 Tex. 275. See also Bonner v. Watson, 6 Tex. 172. A Set-off Successfully Interposed will not oust the jurisdiction of a court. Anonymous, 2 Hayw. (N. Car.) 275; Ross v. Jackson, Cooke (Tenn.) 406; Jordan v. Barry, 4 Hayw. (Tenn.) 103; Ferguson v. Highley. 2 Va. Cas. 255. Compare Ware v. Fambro, 67 Ga. 515. A Demurrer Sustained does not affect the jurisdiction, although such a de- murrer reduces the amount below the limit. Brickell v. Bell, 84 N. Car. 82; Ursey v. Suit, 91 N. Car. 406; Martin v. Goode, in N. Car. 288. Amount Remitted on Appeal. A plain- tiff cannot, by remitting a portion of his claim, deprive the defendant of his right of appeal, when but for this remission the amount in contro- versy is sufficient for that purpose. Lord v. Parmela, I Root (Conn.) 158; Butler v. Brace, i Root (Conn.) 302; Mehle v. Bensel, 39 La. Ann. 680; North v. Holroyd, L. R. 3 Exch. 69; Finch v. Hartpence, 29 Neb. 368; State v. Judge, 24 La. Ann. 601. 709 Fictitious Amount. AMOUNT IN CONTROVERSY. Fictitious Amount. standing the reduction of the amount in controversy, a very re- spectable minority support a contrary opinion. 1 4. Jurisdiction Not Conferred on Appeal. Where the sum recov- ered and in controversy exceeds the amount of which the appel- late court may take cognizance, jurisdiction cannot be conferred thereupon by remitting the excess. 2 IV.. FICTITIOUS AMOUNT. It is a well-settled rule, and of course in harmony both with reason and justice, that one cannot know- ingly allege a fictitious amount for the sole purpose of bringing his case within the jurisdiction of a court, as such would mani- festly be a fraud upon that jurisdiction. 3 1. Illinois. Sands v. Delap, 2 111. 168; Simpson v. Rawlings, 2 111. 28; Clark v. Cornelius, i 111. 46; Blue v. Weir, i 111. 372. Pennsylvania. Hayes v. Robb, i Clark (Pa.) 394; Meredith v. Pierie, i Clark (Pa.) 195; Williams v. Beatty, I T. & H. Pr. (Pa.) 20; Cahill v. Naulty, i T. & H. Pr. (Pa.) 19; Stroh v. Uhrich, I W. & S. (Pa.) 57; Collins v. Collins, 37 Pa. St. 387; Bower v. McCormick, 73 Pa. St. 427; Peter v. Schlosser, 81 Pa. St. 439- South Carolina. Ramsay v . Court of Wardens, 2 Bay (S. Car.)iSo; Simpson v. M'Million, I Nott & M. (S. Car.) 192. Compare Cox v. Stanton, 58 Ga. 406. See dicta in Ex p. Gale, R. M. Charlt. (Ga.) 214; Pilotage Com'rs v. Low, R. M. Charlt. (Ga.) 298; Tyler Cotton Press Co. v. Chevalier, 56 Ga. 494- Thus, for example, where by a writ- ten instrument at the trial the plaintiff admits a portion of the claim to have been paid, by which it is reduced be- low the U. S. Circuit Court's jurisdic- tional amount, the court, on defend- ant's motion, must dismiss the suit. Lozano v. Wehmer, 22 Fed. Rep. 755; Rae v. Grand Trunk R. Co., 14 Fed. Rep. 402. Amount Remitted Prevents Appeal. Where in a suit on 119 interest cou- pons cut from 24 bonds of the city of Opelika, which bonds aggregated $24,000, in which suit more than $5000 was demanded, but plaintiff amended his complaint, reducing his claim to only 90 coupons, and recov- ered a judgment for 4755.64, it was held that the U. S. Supreme Court was without jurisdiction on a writ of error, inasmuch as the said amend- ,ment amounted to a remittitur by the plaintiff of a portion of his claim. Opelika City v. Daniel, 109 U. S. 108; Alabama Gold L. Ins. Co. v. Nichols, 109 U. S. 232 ; First Nat. Bank v. Redick, no U. S. 224; Wimbush v. Chinault, 58 Miss. 234; Singer v. Mc- Guire, 40 La. Ann. 638; Guidry v. Garland, 41 La. Apn. 756; State v. Judge, 21 La. Ann. 728. See also Pritchard v. Bartholomew, 45 Ind.2ig. Reduction by Amendments. Where one prior to an appeal reduces the amount by amendments there can be no appeal. Wilson v. Hawkeye Ins. Co., 74 Iowa 212; Marline v. Hopkins, 40 La. Ann. 322. 2. Vorwald v. Marshall, 71 Iowa 576; Schultz -v. Chicago, etc., R. Co., 75 Iowa 240; Nevada v. Klum, 76 Iowa 428; Giger v. Chicago, etc., R. Co., 80 Iowa 492; Bateman v. Sisson, 70 Iowa 518; Batchelor v. Best, 22 Mo. 402; Boyett v. Vaughan, 85 N. Car. 363; Ijams v. McClamroch, 92 N. Car. 362; Dixon v. Caruthers, 9 Yerg. (Tenn.) 30; Hearn v. Cutberth, 10 Tex. 216; Texas, etc., R. Co. v. Overheiser, 151 U. S. 105. Compare Plunkett v. Evans (S. Dak., 1892), 50 N. W. Rep. 961. 3. Alabama. Carter v. Alford, 64 Ala. 236. Georgia. Cox v. Stanton, 58 Ga. 406. Michigan. Fix v. Sissung, 83 Mich. 56l. Mississippi. Griffin v. McDaniel, 65 Miss. 121. New Jersey. Eacrit v. Keen, 4 N. J. L. 203. North Carolina. Froelich v. South- ern Express Co., 67 N.Car. i; Wiseman v. Witherow, 90 N. Car. 140. Pennsylvania. Peter -v. Schlosser, 81 Pa. St. 439. South Carolina. Ramsay v. Court of Wardens, 2 Bay (S. Car.) 180; Simpson v. M'Million, i Nott & M. (S. Car.) 192; Gracy v. Wright, 2 Mc- Cord(S. Car.) 278; St. Amand v. Gerry. 2 Nott & M. (S. Car.) 487. 710 Fictitious Amount. AMOUNT IN CONTROVERSY. Fictitious Amount. Question Discretionary. Where a plaintiff's claim is for more and his recovery for less than the statutory jurisdictional amount, it lies within the sound discretion of the court to decide the ques- tion whether his object was to evade the law requiring him to make affidavit to the bona fides of his claim. 1 Texas. Swigley v. Dickson, 2 Tex. 193; Austin v. Jordan, 5 Tex. 130; Sherwood v. Douthit, 6 Tex. 224; Tid- ball v. Eichoff, 66 Tex. 58; Ratigan v. Holloway, 69 Tex. 468; Burke v. Adone, 3 Tex. Civ. App. 494; Baker v. Guinn, 4 Tex. Civ. App. 539; So- zaya v. Patterson (Tex. Civ. App., 1893), 23 S. W. Rep. 745; Bent v. Graves, 3 McCord (S. Car.) 280, 15 Am. Dec. 632; Ciapp v. Spokane, 53 Fed. Rep. 515. United States. Herbert v. Rainey, 54 Fed. Rep. 248; Wilson v. Daniel, 3 Dall. (U. S.)40i; Hilton v. Dickinson, 108 U. S. 166; Barry v. Edmunds, no U. S. 550; Gorman v. Havird, 141 U. S. 206; Peeler v. Lathrop, 2 U. S. App. 40. Vermont. Putney v. Bellows, 8 Vt. 272. West Virginia. James v. Stokes, 77 Va. 225; Todd v. Gates, 20 W. Va. 464. Compare Askew v. Askew, 49 Miss. 301; Stephen v. Eiseman, 54 Miss. 535. And contra, Wright v. Smith, 76 111. 216; Wilson v. Hawkeye Ins. Co., 74 Iowa 212; Hapgood v. Doherty, 8 Gray (Mass.) 373. Thus in the case of Edwards v, Bates County, 55 Fed. Rep. 436, "where in November, 1889, H. com- menced a suit in the U. S. Circuit Court for the W. D. of Missouri against a county on two bonds for the sum of $1000, and on ademurrer it was held that the court had no jurisdic- tion, as the amount involved did not exceed $2000, exclusive of interest and costs, as required by act of Congress; and afterward, but before the dismis- sal of said cause, E. commenced suit on the same coupons and also on other coupons which had matured prior to 1880, in which suit, on de- murrer, it was held that said last- named coupons were barred by the statute of limitations; and then, with- out dismissing this suit either, E. in- stituted a third suit on the same bonds and all coupons from 1873 to 1886, and in addition thereto on seven funding bonds of the county for $100 each, . . . not maturing until 1905;" and it was finally held that said fund- ing bonds were clearly added solely to bring the amount in controversy up to a sum exceeding $2000, and thus to confer a fictitious jurisdiction, and that consequently the court was with- out jurisdiction in the premises, for, said the court, "parties cannot make up feigned or simulated matters of controversy to give jurisdiction nor confer jurisdiction by claiming a sum eo nomine above $2000, where in fact the true amount in dispute is less." It was said in Mabry v. Little, 19 Tex. 339, that it was questionable if plaintiff, even before suit was brought, could lessen or remit his real claim to secure jurisdiction. Compare Ram- sour v. Barrett, 5 Jones (N. Car.) 409; Fuller v. Sparks, 39 Tex. 138. A Fictitious Set-off cannot be pleaded by a defendant in order to deprive a justice of jurisdiction. Alexander v. Peck, 5 Blackf. (Ind.) 308. Honest Mistakes, however, made in allegations of amount in actions of tort will not deprive a court of its jur- isdiction. Grether v. Klock, 39 Conn; 133; Graham v. Roder, 5 Tex. 146; International, etc., R. Co. v. Nichol- son, 61 Tex. 551; Dwyer v. Bassett, 63 Tex. 275; Roper v. Brady, 80 Tex. 588; Maxfield v. Scott, 17 Vt. 634; Sanborn v. Chittenden, 27 Vt. 171; . Clark v. Crosby, 37 Vt. 188. But com- pare Doubleday v. Marstin, 27 Vt. 488. 1. Cummings v. Edmunson, 5 Port. (Ala.) 145. Compare Boggs v. Near, 20 Ind. 395; Miller v. Beal, 26 Ind. 234; Parkham v. Hardin, n Ired. (N. Car.) 219. No Presumption of Bad Faith. Thus where the demand amounts to more than $200 (the court's minimum juris- dictional limit), and less is recovered, the presumption is that plaintiff brought suit in good faith, and in the absence of any showing to the con- trary the court will be clothed with jurisdiction. Worcester v. Lampson, 55 Vt. 350; Fortescue v. Spencer, 2 Ired. (N. Car.) 63. Exemplary Damages Claimed. Thus also the claiming of exemplary dam- ages in an action for damages ckused by injury to a horse from a wire fence 711 Eeal Amount. AMO UNT IN CONTRO VERS Y. In General. V. REAL AMOUNT!. In General. While, as has already been stated, the amount in controversy is generally deemed to be the amount as claimed where there is no bad faith on the part of the plaintiff, nevertheless a rule more perhaps in consonance with absolute justice widely prevails in the federal courts, and finds also support elsewhere, that wherever the real amount is made to appear, it is the all-controlling criterion of jurisdiction. 1 Under where gross negligence is averred, which exemplary damages swelled the amount claimed to a sum sufficient to give the court jurisdiction otherwise inadequate, cannot raise the presump- tion againstplaintiff that he fraudulent- ly claimed more than he could possibly recover for the sole purpose of con- ferring jurisdiction. Connellee v. Drake (Tex. App., 1890) 16 S. W. Rep. 175. On the other hand, where the items of a plaintiff's demand were more than $200, the jurisdictional minimum, but it appeared that a note of plaintiff's in favor of the defendant had been agreed to be applied in par- tial liquidation of plaintiff's demand, and sufficiently so that the amount claimed would be reduced below $200, the court was held to be divested of its jurisdiction. Abbott v. Chase, 55 Vt. 466; Wiseman v. Witherow, go N. Car. 140. On Appeal. The amount in contro- versy cannot be increased fictitiously for the sole purpose of conferring ap- pellate jurisdiction. Connecticut. Lockwood v. Knapp, 4 Conn. 257. Indiana. Williamson v. Branden- berg, 133 Ind. 594. Kentucky. Burbage v. Squires, 3 Mete. (Ky.)77. Louisiana. Copley v. Ross, I La. Ann. 310; Vogel v. Retaud, 4 La. Ann. 213; Cabrara z/.Dinkgrave, 6 La. Ann. 735; King v. Reed, 7 La. Ann. 492; Hagenberger v. Wild, 9 La. Ann. 3; Thornhill v. Lloyd, 10 La. Ann. 282; Rutherford v. Hennen, 13 La. Ann. 336; Poree v. Valische, 15 La. Ann. 292; Pritchard v. Parker, 21 La. Ann. 745; Michoud v. Nolan, 24 La. Ann. 117' State v. Judge, 24 La. Ann. 601; Pointer's Succession, 30 La. Ann. 370; Gushing v. Sambola, 30 La. Ann. 426; March v. McNeely, 36 La. Ann. 287; Hall v. Curtis, 39 La. Ann. 504; Mul- ler v. Zuberbier, 39 La. Ann. 888; Block v. Kearney, 43 La. Ann. 381. United States. Agnew v. Dorman, Taney (U. S.) 386; Clay Center v. Farmer's L. & T. Co., 145 U. S. 224. Virginia. Hansbrough v. Stinnet, 22 Gratt. (Va.)593; McCarty v. Hama- ker, 82 Va. 471. Compare Fink v. Denny, 75 Va. 663; and, contra, State v. Judge, 9 La. Ann. 353; Carrollton Co. v. Harper, 12 La. Ann. 212. Fictitious Set-off. A defendant can- not acquire a right of appeal by filing a set-off manifestly specious and un- provable. Societa Italiana Di Ben- eficenza v. Sulzer, 138 N. Y. 468; Manchester Paper Mills Co. v. Heth (Va., 1893), 18 S. E. Rep. 189. Nor will such a set-off assist a plaintiff appealing from a judgment for de- fendant. Schultz v. Holbrook, 86 Iowa 569. 1. United States. Symonds z/.Greene, 28 Fed. Rep. 834; Simon v. House, 46 Fed. Rep. 317; Texas, etc., R. Co. v. Kuteman, 54 Fed. Rep. 547; U. S. Bank v. Moss, 6 How. (U. S.) 31; Stin- son v. Dousman, 20 How. (U. S.)46i; Williams v. Nottawa, 104 U. S. 209; Jenness v. Citizens' Nat. Bank, no U. S. 52; Dows v. Johnson, no U. S. 223; Wabash.etc., R. Co. v. Knox, no U. S. 304; Bowman v. Chicago, etc., R. Co., 115 U. S. 611. Connecticut. Andrew v. Babcock,63 Conn. 109. Delaware. Guenford v. Loose, 5 Del. 596. Indiana. Murphy v. Evans, n Ind. 517; Keadle -v. Siddens, 131 Ind. 597; Williamson v. Brandenberg, 133 Ind. 594- Illinois. Baber v. Pittsburg, etc., R. Co., 93 111. 342. Iowa. Marlow v. Marlow, 56 Iowa 299; Young v. McWaid, 57 Iowa 101; Madison v. Spitsnogle, 58 Iowa 369; Centerville v. Drake, 58 Iowa 564; Bradenberger v. Rigler, 68 Iowa 300; Thurston z>. Lamb (Iowa, 1894), 57 N. W. Rep. 875. Kansas. Adams v. Douglass County, McCahon (Kan.) 235; Stinson v. Cook (Kan., 1894), 35 Pac. Rep. 1118. Kentucky. Cobb v. Com., 3 T. B, Mon. (Ky.) 391; Hoskins v. Roberts, 712 Eeal Amount. A MO UNT IN CON TRO VERS Y. In General. this rule the real amount as shown by the evidence produced at the trial governs on a question of jurisdiction when the allegations are in conflict with it. 1 And the amount shown by the record 2 B. Mon. (Ky.) 263; Mullins v. Bul- lock (Ky., 1892), 19 S. W. Rep. 8. Louisiana. Williams v. Vance, 2 La. Ann. 908; Holland v. Duchamp, 12 La. Ann. 784; Gustine v. New Orleans Oil Co., 13 La. Ann. 510; Vicksburg, etc., R. Co. v. Hamilton, 15 La. Ann. 521; Vincent v. Schweitzer, 17 La. Ann. 199; Gayarre v. Hays, 21 La. Ann. 307; Espinola's Succession, 21 La. Ann. 264; Blanchard v. Kenison, 25 La. Ann. 385; Wilkins v. Gantt, 32 La. Ann. 929; Thompson v. Lemelle, 32 La. Ann. 932; Wood v. Rocchi, 32 La. Ann. 1120; State v. Bonny, 32 La. Ann. 1187; Gillis v. Clayton, 33 La. Ann. 285; Hearsay v. Booth, 33 La. Ann. 300; Schmidt v. Brown, 33 La. Ann. 416; Lemle v. Routon, 33 La. Ann. 1005; Guss v. Routon, 33 La. Ann. 1046; Meyer v. Logan,. 33 La. Ann. 1055; Smith v. Merchants' Mut. Ins. Co., 33 La. Ann. 1071; Stubbs v. McGuire, 33 La. Ann. 1089; Loeb v. Arent, 33 La. Ann. 1085; Bierz/. Gautier, 35 La. Ann. 206; Cousley's Succession, 39 La. Ann. 570; Merchants', etc.. Ins. Co. v. Levi, 40 La. Ann. 135; Cassidy's Succession, 40 La. Ann. 827; Romero's Succession, 43 La. Ann. 975. New Jersey. State v. Neumeyer, 51 N. J. L. 299. New York. Abernathy v. Aber- nathy, 2 Cow. (N. Y.)4i3; Williams v. Bitner, i Lans. (N. Y.)2OO. Pennsylvania. Freedenbery v. Meeteer, 4 Clark (Pa.) 182; Lelar v. Gault, 2 Phila. (Pa.) 78; Baer v. Gar- rett, 2 Leg. Chron. (Pa.) 207. Texas. Marshall v. Taylor, 7 Tex. 235; Dyer v. Dement, 37 Tex. 431; Clark v. Brown, 48 Tex. 212; Cotter v. Parks, 80 Tex. 539. Vermont. Thompson v. Colony, 6 Vt. 91; Briggs v. Beach, 18 Vt. 115; Bank of Rutland v. Cramton, 28 Vt. 330. Virginia. Batchelder v. Richard- son, 75 Va. 835; Whitmer v. Spitzer, 8 1 Va. 64. West Virginia. Morrison v. Good- win, 28 W. Va. 328; Currey v. Lawler, 29 W. Va. in; Berry v. Cunningham, 37 W. Va. 302. England. Mayer v. Burgess, 4 El. & Bl. 655, 82 E. C. L. 655. Compare Levy v. Collins, 32 La. Ann. 1003. Thus, in an action of trespass on the case to recover damages for an alleged expulsion from the cars, where plaintiff's own statement and the testi- mony produced by him disclose that he is not entitled to recover $2000, a U. S. Circuit Court should dismiss the case for want of jurisdiction, the court saying: "While the general rule an- nounced in Gordon v. Longest, 16 Pet. (U. S.) 97, is unquestioned that in ac- tions of tort the amount claimed in the declaration is the test of jurisdic- tion, this case must be construed in connection with the act of Congress of 1875, the fifth section of which makes it the duty of the court to dismiss the case when it shall appear to its satis- faction that the suit does not really * * * involve a * * * contro- versy properly within its jurisdic- tion." Maxwell v. Atchison, etc., R. Co. 34 Fed. Rep. 286. And in Wol- cott v. Sprague, 55 Fed. Rep. 545, where S. gave B. a mortgage on his property to secure $4000 and then ex- ecuted to the cashier of a bank a deed absolute on its face, but in reality to secure a loan of $1000. S. insured the property for $4000, and delivered the policy to B. Subsequently, a fire oc- curring, B. sued the insurance company on the policy, and, upon a compromise of said suit, the company purchased B.'s interest in the mortgage. Then the bank cashier instituted an action to foreclose his mortgage, making the insurance company a party, which filed a cross-bill, setting up its $4000 mortgage, in which suit, on a plea to the jurisdiction, it was held that the real amount in controversy was not only the $1000 mortgage, but also the one for $4000, and" that consequently the court was clothed with jurisdiction. 1. Ballerino v. Bigelow, 90 Cal. 500; Williams v. Leeds, Kirby (Conn.) 278; Strong v. Meacham, i Root (Conn.) 525; Shelton v. Dutton, 2 Root (Conn.) 440; Clark v. Whitbeck, 14 111. 393; Happel v. Brethauer, 70 111. 166; Bozell v. Hauser, 9 Ind. 522; New Orleans v. McArthur, 12 La. Ann. 47; People v. Marine Court, 36 Barb. (N. Y.) 341; Brisbane v. Batavia Bank, 36 Hun (N. Y.) 17; Blake v. Krom, 128 N. Y. 64; Caldwell v. Garmany, 3 Hill (S. Car.) 202; Allen v. Singleton, i Rice 713 Real Amount. AMOUNT IN CONTROVERSY. In General. and the pleadings, taken as a whole, when these disclose the real sum in dispute, is determinative of the question of jurisdiction. 1 U. S. 108; Bruce v. Manchester, etc., R. Co., 117 U. S. 514; Street v. Ferry, 119 U. S. 385; Gibsonjw. Shufeldt, 122 U. S. 27; Cox v. Western Land, etc., Co., 123 U. S. 375; U. S. v. Hill, 123 U. S. 681; Harris v. Barber, 129 U. S. 366. Vermont. Bishop v. Warner, 22 Vt. 591; Paul v. Burton, 32 Vt. 148; Mason v. Hutchins, 32 Vt. 780. Thus in the case of Bowman v. Chi- cago, etc., R. Co. ,115 U. S. 611, in which plaintiffs sought damages for a refusal by defendant to receive and carry 1000 kegs of beer, the declaration contained two counts, each claiming $1200 damages. Subsequently plaintiffs amended their declaration by inserting an ad damnum clause in the sum of $10,000, and judgment was rendered for the defendant. Plaintiffs appealed, and although there was an agreement of counsel that only the declaration as amended should be transmitted, the Supreme Court held that it was with- out jurisdiction, because the mere fact that an ad damnum larger than the minimum limit, i.e. $5000, is filed when the record discloses that the amount in dispute is smaller, will not clothe it with jurisdiction in error. The Amount Recovered is frequently the index of the real amount, espe- cially in suits where the relief sought is of a liquidatable character, and in questions of appellate jurisdiction. Thus in Stevens v. Bafs, I Root (Conn.) 127, there was an action on a note for ^20 and interest (.20 being the statu- tory minimum limit of appellate juris- diction at the time), said note being given to oblige defendant to abide an award. The sum demanded was .30, but the recovery was only 13 55. sd., and it was held that there was no right of appeal. Pettibone v. Phelps, 2 Root (Conn.) 137; Fuller v. Reed, 2 Root (Conn.) 188; Bateman v. Sis- son, 70 Iowa 518; Brillis v. Blumen- thal, 13 Fla. 577; Turner v. Pash (Ky., 1891), 17 S. W. Rep. 809; State v. Judge, 24 La. Ann. 601; State v. Shakespeare (La., 1889), 6 So. Rep. 592; Myers v. Myers, 22 Mo. App. 94; McCauly v. Barnes, i N. J. L. 52; Petrie v. Adams, 71 N. Y. 79; Mc- Millan v. Cronin, 75 N. Y. 474; Schenck v. Marx, 125 N. Y. 703; The Steamship Haverton, 137 U. S. 145 ; (S. Car.) 289; Lipsmeier v. Vehslage, 29 Fed. Rep. 175; Sharon v. Terry, 36 Fed. Rep. 337; Greene v. Tacoma, 53 Fed. Rep. 562; Horst v. Merkley, 59 Fed. Rep. 502; Elgin v. Marshall, 106 U. S. 578; Bradstreet Co. v. Higgins, 112 U. S. 227; Quebec F. Assur. Co. v. Anderson, 13 Moore P. C. C. 477. Compare Sullivan v. Vail, 42 Conn. 90; The Jesse Williamson, Jr., 108 U. S. 305. 1. Alabama. Wagnor v. Turner, 73 Ala. 197. Connecticut. Moultrop v. Bennett, Kirby (Conn.) 351; Gates -v. Jones, I Root (Conn.) 238; Lord v. Merwin, i Root (Conn.) 276; Lord v. Waterhouse, i Root (Conn.) 430; Guille v. Brown, 38 Conn. 237; Welles v. Allen, 41 Conn. 140. Illinois. Hargrave v. Penrod, i 111. 401, 12 Am. Dec. 201; Bursts. Wayne, 13 111. 599; Mattingly v. Darwin, 23 111. 618; Cox v. McGuire, 26 111. App. 315; Seafkas v. Evey, 29 111. 178. Indiana. Epperly v. Little, 6 Ind. 344- Iowa. Davis v. Upright, 54 Iowa 752; Reed v. Shum, 63 Iowa 378; Ar- dery v. Chicago, etc., R. Co., 65 Iowa 723; Kurtz v. Hoffman, 65 Iowa 260; Brock v. Barr, 70 Iowa 399. Louisiana. Grogreve v. Windhorst. 21 La. Ann. 296; Crescent City Live Stock, etc., Co. v. Larrieux, 30 La. Ann. 798; Miller v. Gidiere, 36 La. Ann. 201. Michigan. Raymond v. Hinkson, 15 Mich. 113. Minnesota. Goncelier v. Foret, 4 Minn. 13; Stevers v. Gunz, 23 Minn. 520. Missouri. Kerr v. Simmons, n Mo. App. 595; Owens v. Branson, 28 Mo. App. 584; Colvin v. Sutherland, 32 Mo. App. 77; Stephenson v. Porter, 45 Mo. 358. Rhode Island. Edwards v. Hopkins, 5 R. I. 138. Texas. Lowe v. Dowbarn, 26 Tex. 507. United States. Sewall v. Chamber- lain, 5 How. (U. S.)6; Jenks v. Lewis, 3 Mason (U. S.) 503; Lee v. Watson, I Wall. (U. S.) 337; Schacker v. Hart- ford F. Ins. Co., 93 U. S. 241; Peyton v. Robertson, 9 Wheat. (U. S.) 527; New Jersey Zinc Co. v. Trotter, 108 U. S. 564; Opelika City v. Daniel, 109 Real Amount. AMOUNT IN CONTROVERSY. In General. The mere fact that the cause of action arises out of a demand whose total sum exceeds the jurisdictional limit, will.not prevent the attaching of that jurisdiction, provided the real amount due in the particular case is alone claimed. 1 The Real Value and not the alleged value of property is the touch- stone of jurisdiction in actions where value is the gravamen, such as replevin. 2 Exemplary Damages allowed in actions of malicious trespass are calculable in addition to the actual damage in determining the jurisdictional amount. 3 Attorney's Fees especially stipulated for in promissory notes are not considered costs, but are calculable in determining the amount in controversy. 4 Courts Will Investigate the question in every instance in order to determine the real amount, and they will not be bound by allega- tions, but will carefully weigh and scrutinize the proceedings as a whole. 5 Whitmer v. Spitzer, 81 Va. 64; Nealv. Van Winkle, 24 W. Va. 401. See also Blakeslee v. Murphy, 44 Conn. 188; Beard v. Kinney, 6 Blackf. (Ind.) 425. 1. Winston v. Majors, 6 Ala. 659; Wilhelmsr/. Noble, 36 Ga. 599; Maurer v. Derrick, i 111. 197; Culley v. Lay- brook, 8 Ind. 285; Inhabitants of Con- gressional Tp. v. Weir, 9 Ind. 224; Guards. Circle, 16 Ind. 401; Pate v . Shafer, 19 Ind. 173; Brown v. Cain, 79 Ind. 93; Hapgood v. Doherty, 8 Gray (Mass.) 373; Best v. Best, 16 Mo. 530; Thompson v. Gibson, 2 Overt. (Tenn.) 235; Bridge v. Ballew, n Tex. 269; Dalby v. Murphy, 25 Tex. 354. 2. Sanford v. Scott, 38 Conn. 244; Tylef v. Bowlus, 54 Ind. 333; Leslie v. Reber, 4 Kan. 315; Leonard v. Han- non, 105 Mass. 113; Blake v. Darling, 116 Mass. 300; Octo v. Teahan, 133 Mass. 430; The Sydney, 139 U. S. 331. But compare Maxfield v. Scott, 17 Vt.- 634- 3. Barry v. Edmunds, 116 U. S. 550. But in actions of contract such dam- ages are excluded from the determina- tion. Peterson v. Thomas (Tex. Civ. App., 1893), 24 S. W. Rep. 1124. Double Damages and other statutory allowances of extra damages are gen- erally excluded in computing the juris- dictional sum as indicated by the real amount. Hussey v. King, 83 Me. 568; Grau v. St Louis, etc., R. Co., 54 Mo. 240 ; Natchez v. Mallery, 54 Miss. 498; Morris v. Rucks, 62 Miss. 76; Nelson v. Nelson, 2 Munf. (Va.) 542. 4. Blankenship -v. Wartelsky (Tex., 1887), 6 S. W. Rep. 140; Murrah v. Brichta (Tex., 1888), 9 S. W. Rep. 185; Altgelt v. Harris (Tex., 1889), n S. W. Rep. 857; Waters v. Walker (Tex. App., 1891), 17 S. W. Rep. 1085. Compare Simmons v. Terrell, 75 Tex. 275. Con- tra, Moore v. Foy (Tex. App., 1891), 15 S. W. Rep. 199; Baker v. Howell, 44 Fed. Rep. 113; Spiesberger v. Thomas, 59 Iowa 606. See PROMISSORY NOTES. 5. Connecticut. Bridgeport v. Blinn, 43 Conn. 274. Illinois. Clark v. Cornelius, I 111. 46; Brant v. Gallup, in 111. 487, 53 Am. Rep. 638. Indiana. Indianapolis, etc., R. Co. v. Elliott, 20 Ind. 430; Indianapolis, etc., R. Co. v. Kerchival, 24 Ind. 139; Toledo, etc., R. Co. v. Tilton, 27 Ind. 71; Jeffersonville, etc., R. Co. v. Bre- voort, 30 Ind. 324; Louisville, etc., R. Co. v. Johnson, 67 Ind. 546. Iowa. Ruiter v. Plate, 77 Iowa 17; Nash v. Beckman, 86 Iowa 249. Louisiana. Lanier v. Gallatas,' 13 La. Ann. 175; Wilkins v. Gantt, 32 La. Ann. 929; State v. Voorhies, 34 La. Ann. 1142; Denegre v. Moran, 36 La. Ann. 423; Breaux v. Recorder, 36 La. Ann. 742. Missouri. Kerrw. Simmons, n Mo. App. 595 ; Anchor Milling Co. v. Walsh, 97 Mo. 287; Wolff v. Mat- thews, 98 Mo. 246. New York. People v. Horton, 64 N. Y. 58; Campbell v. Mandeville, no N. Y. 628; Shaw v. Roberts (Su- preme Ct.), 14 N. Y. Supp. 579. 715 Seal Amount. AMOUNT IN CONTROVERSY. Must Appear. An Appellant's Right to an appeal is determined by the amount shown by him to be really and legally due, and not by the re- covery. 1 2. Amount Must Appear. Following almost as a corollary on the principle enunciated, that the real amount is a very important element in determining the question of jurisdiction, is the well- settled doctrine that the record must affirmatively show the amount in controversy in order that the court may take jurisdic- tion. 2 Pennsylvania. Byrne v. Gordon, 2 Brown (Pa.) 271. South Carolina. Allen v. Singleton, I Rice (S. Car.) 289. United States. Street v. Ferry, 119 U. S. 385; Culver v. Crawford County, 4 Dill. (U. S.) 239; Gray v. Blanchard, 97 U. S. 564; U. S. v. Hill, 123 U. S. 681; Davie v. Heyward, 33 Fed. Rep. 93- Affidavits Showing Amount. A rule prevails in the Supreme Court of the U. S. in appeals thereto, when the real amount can be determined in no other way, to allow affidavits of value to be made in order that the court may be apprised of its jurisdiction vel non. Williamson v. Kincaid, 4 Dall. (U. S.) 19; Youngstown Bank v. Hughes, 106 U. S. 523; Wilson v. Blair, 119 U. S. 387. In an early case it was even held that the amount could be shown by viva voce testimony. U. S. v. Brig Union, 4 Cranch (U. S.) 216. In Missouri. By Gen. St. 1865, when the amount does not appear, the de- fendant is entitled to a verbal state- ment provided thereby. Gillihan v. Wren, 44 Mo. 377. Compare Agnew v. Dorman, Taney (U. S.) 386. 1. Crabtree 'v. Cliatt, 22 Ala. 181; House v. Lassiter, 49 Ala. 307; Lan- gan v. Langan, 86 Cal. 132; Purcell v. Booth, 6 Dakota 17; Halpin v. Max- well, 24 La. Ann. 94; Beirne v. Gill, 34 La. Ann. 7; Imhoff v. Imhoff (La., 1893), 13 So. Rep. 90; Wolff v. Matthews, 98 Mo. 246; State v. Gill, 107 Mo. 44; King v. Galvin, 62 N. Y. 238; Pennie v. Continental Ins. Co., 67 N. Y. 278; Rosevelt v. Linkert, 67 N. Y. 447; Brown v. Sigourney, 72 N. Y. 122; Wiley v. Brigham, 81 N. Y. 13; Knapp v. Deyo, 108 N. Y. 518 ; A. Hall Terra Cotta Co. v. Doyle, 133 N. Y. 603; Gorman v. Havira, 141 U. S. 206; American Express Co. v. Gray, 62 Vt. 421. See post, this article, JXII. APPEALABLE AMOUNT. In Hew York. By Code of Proced- ure, wherever there come in litigation the mutual accounts of plaintiff and defendant, a justice has no jurisdiction when their sum total exceeds $400; but he is made the arbiter of that question, and it is only when such accounts shall " be proven to his satis- faction " to be in excess of that sum that his jurisdiction is ousted. Glackin v. Zeller, 52 Barb. (N. Y. Super. Ct.) 147; Boston Mills v. Eull, 6 Abb. Pr. N. S. (N. Y.) 319; Burdick v. Hale, 13 Abb. N. Cas. (N. Y. Supreme Ct.) 60; Lamoure v. Caryl, 4 Den. (N. Y.) 370; White v. Place, 40 Hun (N. Y.) 481; Fuller v. Conde, 47 N. Y. 89. 2. Alabama. Cahuzac v. Samini, 29 Ala. 288. Arkansas. McClure v. Hill, 36 Ark. 268. California. Hoyt v. Stearns, 39 Cal. 92; Heinlen v. Heilbron, 71 Cal. 557- Connecticut. Miles v. Troop, i Root (Conn.) 148; Lord v. Parmela, i Root (Conn.) 158; Melfon v. Hammond, I Root (Conn.) 518. Illinois. Trader v. McKee, 2 111. 558; McGuirk v. Burry, 93 111. 118; Lewis v. Shear, 93 111. 121; Hancock v. Tower, 93 111. 150; Morris v. Pres- ton, 93 111. 215; Piper v. Jacobson, 98 111. 389. Kansas. Loomis v. Bass, 48 Kan. 26. Kentucky. Farron v. Summers, 3 Litt. (Ky.) 460. Louisiana. Gardere v. Garvey, 2 La. Ann. 136; Plique v. Bellome, 2 La. Ann. 293; Webb v. Kemp, 2 La. Ann. 337; McDonogh v. Derbigny, 2 La. Ann. 956; Spangenberg v. Bige- low, 3 La. Ann. 70; McDonogh v. Nugent, 4 La. Ann. 28; Lemoine v. Garcia, 4 La. Ann. 366; Second Muni- cipality v. Corning, 4 La. Ann. 407; Kellar v. Palfrey, 8 La. Ann. 282; Bersheim v. Hudson, 8 La. Ann. 456; Le Blanc v. Pittman, 16 La. Ann. 430; 716 Real Amount. A MO UNT IN CONTRO VERS Y. Unaffected. 3. Amount Unaffected by Agreement of Parties. No agreement of parties or consent on their part, either express or by implication, New Orleans v. Imley, 12 La. Ann. 87; Boutte v. Maillard, 19 La. Ann. 276; State -v. Levee Steam Cotton Press Co., 22 La. Ann. 622; State v. Laresche, 24 La. Ann. 148; State v. Friedlander, 25 La. Ann. 43; State v. Judge, 27 La. Ann. 676; Lallande v. Trezevant, 39 La. Ann. 830; Goodrich v. Newell, 43 La. Ann. 378; Miller v. Cappel, 39 La. Ann. 881; Adams v. Starks, 33 La. Ann. 304. Missouri. Cook v. Decker, 63 Mo. 328; State v. Gill, 107 Mo. 44. New Jersey. Coyle v. Coyle, 26 N. J. L. 132. Ohio. Aten v. Morgan, Tapp. (Ohio) 232. United States. U. S. v. Pratt Coal, etc., Co., 18 Fed. Rep. 708; Oleson v. Northern Pac. R. Co., 44 Fed. Rep. i; Home Ins. Co. v. Nobles, 63 Fed. Rep. 641; Simon v. House, 46 Fed. Rep. 317; Continental Ins. Co. v. Rhoads, 119 U. S. 237; Halsted v. Buster, 119 U. S. 341; Mansfield, etc., R. Co. v. Swan, in U. S. 379; Bors v. Preston, in U. S. 252; Morris v. Gilmer, 129 U. S. 315; Menard v. Goggan, 121 U. S. 253; Everhartz/. Huntsville College, 120 U. S. 223; Johnson v. Wilkins, 116 U. 5. 392; Reynolds v. Burns, 141 U. S. 117; Cameron v. U. S., 146 U. S. 533; Washington, etc., R. Co. v. District of Columbia, 146 U. S. 227; Abadie v. U. S., 149 U. S. 261; El Paso Water Co. v. El Paso (1894), 152 U. S. 157. Vermont. Perkins v. Rich, 12 Vt. 595- Virginia. Maitland v. McDearman, I Va. Cas. 131. West Virginia. Rymer v. Hawkins, 18 W. Va. 309; Aspinwall v. Barrick- man, 29 W. Va. 508; McCoy v. McCoy, 33 W. Va. 60. Amount is not Presumed. It is the real and not the problematical amount which governs; the law raises no pre- sumption, in the absence of the affirm- ative showing of the amount in con- troversy, as to what the real amount may be. Thus it was held in Rich v. Bray, 37 Fed. Rep. 273, that a decla- ration that the amount involved was unknown, but that it was largely in excess of the jurisdictional minimum, was not sufficient to confer jurisdic- tion. Peters v. Goodrich, 3 Conn. 146; Griswold v. Mather, 5 Conn. 435; Abbe v. Goodwin, 7 Conn. 377; Um- lauf v. Umlauf, 103 111. 651; Swan v. Bry, 21 La. Ann. 481; Wade v. Lou- don, 30 La. Ann. 660; Lane v. Doak, 48 Tex. 227; Mawthe v. Crozier, 50 Tex. 153; Murphy v. East Portland, 42 Fed. Rep. 308; Olney v. Steamship Falcon, 17 How. (U. S.) 19. Compare, contra, Hefflin v. Bell, 30 Vt. 134. The Burden of Proving Jurisdiction rests upon the party seeking a revision of the case. Hagan v. Foison, 10 Pet. (U. S.) 160. See art. EVIDENCE. Want of Jurisdiction, when caused by the fact that the amount involved falls below the minimum limit, must affirmatively appear. Babcock v. Clay- ton County, 65 Iowa no; Henkle v. Keota, 68 Iowa 334 ; District Tp. v. Independent Dist., 72 Iowa 687; Cook v. Decker, 63 Mo. 328; Parker v. Eaton, 25 Barb. (N. Y.) 122; Williams v. Shields, 2 W. N. C. (Pa.) 176. The Court Will Dismiss the case when the real amount involved in contro- versy does not affirmatively appear. Perkins v. Perkins, 7 Conn. 558, 18 Am. Dec. 120; Home v. Duff, 5 Colo. 574; Spangenberg v. Bigelow, 3 La. Ann. 70; State v. Judge, 22 La. Ann. 49 ; Case v. Hurley, 22 La. Ann. 333 ; State v. Dopf, 22 La. Ann. 400; Zach- arie v. Lyons, 22 La. Ann. 618 ; Hite v. Hinsel, 39 La. Ann. 113; Pinckney v. Wolf, 41 La. Ann. 306; Schwartz v. Firemen's Charitable Assoc., 41 La. Ann. 404; Webb v. Hoth (La., 1888), 15 So. Rep. 536; Stephen v. Eiseman, 54 Miss. 535; Eacrit v. Keen, 4 N. J. L. 203; Gulf, etc., R. Co. v. Buford, 85 Tex. 430; Kenyon v. Knipe, 46 Fed. Rep. 309; Parker v. Morrice, 106 U. S. i; Hunt v. Blackburn, 127 U. S. 774; Walter v. Chichester, 84 Va. 723; Henry's Succession, 45 La. Ann. 156; Martin -v. Harvey, 54 Miss. 685; Ed- wards v. Hopkins, 5 R. I. 138; Ontario, etc., R. Co. v. Marcheterre, 17 Can. Sup. Ct. Rep. 141. Compare, contra, Democrat Pub. Co. v. Lewis (Iowa, 1894), 57 N. W. Rep. 869. In Home Ins. Co. v. Nobles, 63 Fed. Rep. 641, it was held that a bill for an injunction restraining defendants from further issuing a certain circular al- leged to be detrimental to complain- ant's business, and from in any way interfering with that business by threats, etc., which does not contain any statement of the amount of dam- 717 Eeal Amount. A MO UNT IN CONTRO VERS Y. Not Dependent. can affect the real amount in controversy so as to render it within a court's jurisdiction, when without such consent or agreement it would not be. 1 4. Amount Not Dependent on Collateral Effect of Judgment. Naturally ensuing from what has already been said on the ques- tion of real amount is the further principle that neither the pro- bative force of a judgment nor its collateral effect on another suit or suits can in any manner influence the determination of the amount in controversy, that being only the sum in dispute in the case then on trial. 8 ages sustained or apprehended, or of the value of the matter in controversy, or of the object sought to be obtained, is not sufficient to give the court juris- diction. But such a bill will not be dismissed where it does not affirma- tively appear that the court is with- out jurisdiction, but complainant will be given leave to move to amend. 1. Leigh v. Mason, 2 111. 249; Will- iams v. Blankenship, 12 111. 122; Hor- ton v. Sawyer, 59 Ind. 587; Denegre v. Moran, 35 La. Ann. 346; Gamber v. Holben, 5 Mich. 331; Stone v. Corbett, 20 Mo. 353; Aten v. Morgan, Tapp. (Ohio) 232; Haynes v. Briggs, 41 Fed. Rep. 468; Gruner v. U. S., n How. . Parsons, 3 Conn, i; Mobile, etc., R. Co. v. State, 51 Miss. 137 ; Prussia v. Guenther (Orleans County Ct.), 16 Abb. N. Cas. (N. Y.) 230; Gibson v. Gault, 33 Pa. St. 44. Contra, semble, Gault v. Vin- yard, 26 Pa. St. 282. 1. Stanley v. Albany County, 15 Fed. Rep. 483 ; Armstrong v. Ettle- sohn, 36 Fed. Rep. 209; Gulf, etc., R. Co. -v. Washington, 49 Fed, Rep. 347; O'Connell v. Reed, 56 Fed. Rep. 531; Judson v. Macon County, 2 Dill. (U. S.) 213; Yon v. Baldwin, 76 Ga. 769; Green v. Lester, 78 Ga. 86; Living- stone v. L'Engle, 27 Fla. 502; Palmer v. Assessors, 42 La. Ann. 1122; Wild v. Haycraft, 2 Duv. (Ky.) 309; Sayre v. Lewis, 5 B. Mon. (Ky.) 90; Wood- ruff v. Chambers, 13 Pa. St. 132; Curry v. Spink, 23 Pa. St. 58; Farmers' Mut. F. Ins. Co. v. Marshall, 29 Vt. 23; Windham County Ins. Co. v. Pierce, 36 Vt. 16; Sauvageau v. Gauthier, 22 W. R. 667; Grimbley v. Aykroyd, 12 Jur. 357. Several Counts in a declaration, each claiming separate damage, where there is no general ad darnnum, may be aggregated to form the jurisdictional amount in controversy. Swift v. Woods, 5' Blackf. (Ind.) 97; Wetherill v. Congressional Tp., 5 Blackf. (Ind.) 357; Bainum v. Small, 4 Ind. 49; Mays v. Dooley, 59 Ind. 287; Edwards v. Hopkins, 5 R. I. 138. Compare Long- with v. Riggs, 123 111. 258; Smith v. Clark County, 54 Mo. 58; Fickle v. St. Louis, etc., R. Co., 54 Mo. 225; Hunt v. Hopkins, 66 Mo. 98; Vineyard v. Lynch, 86 Mo. 684. 2. Moore v. Woodruff, 5 Ark. 214; Grayson v. Williams, Walk. (Miss.) 298, 12 Am. Dec. 568; Morris v. Shry- ock, 50 Miss. 590; Ash v. Lee, 51 Miss. 101; Willard v. Sperry, 16 Johns. (N. Y.) 121 ; Boyle v. Robbins, 71 N. Car. 130; McPhail v. Johnson, 109 N. Car. 571; Walton v. Vanhorn, I Phila. (Pa.) 377; Richards v. Marten, 23 W. R. 93. Contra, Herrin v. Buckelew, 37 Ala. 585; Dews v. Eastham, 5 Yerg. (Tenn.) 297; Reed v. Stockwell, 34 Vt. 206. See ante, notes to III. AMOUNT REMITTED, JURISDICTION CONFERRED, p. 707. Claim Acquired by Assignment. Un- der act of Congress of March 3, 1887, U. S. Circuit Courts have jurisdiction where the matter in dispute is suffi- cient to confer jurisdiction upon those courts, although such amount is made up of several demands acquired by as- signment. Stanley v. Albany County, 723 Unaggregated AMOUNT IN CONTROVERSY. Amount. IX. UN AGGREGATED AMOUNT Several Claims in One Suit. Whenever there are several distinct demands united in one suit in which separate judgments should be rendered, or two cases are united in one, and are so united for convenience or to avoid multiplicity of suits, the several amounts of each cannot be aggregated to con- fer jurisdiction. 1 Separate Promises on One instrument. It is immaterial that one instru- ment contains the separate promises of several defendants when the same is put in suit. 2 15 Fed. Rep. 483; Hammond v. Cleave- land, 23 Fed. Rep. i; Bernheim v. Birnbaum, 30 Fed. Rep. 885; Judson v, Macon County, 2 Dill. (U. S.) 213. In Louisiana similarly also on ap- peal. State v. Judge, 21 La. Ann. 65; State v. Judge, 28 La. Ann. 935; Pease v. Police Jury, 34 La. Ann. 137; Palmer v. Assessors, 42 La. Ann. 1122. See also Fink v. Denny, 75 Va. 663. Value and Damages Consolidated. In an action of replevin, where the prop- erty was alleged to be worth $200, and $500 damages were claimed, it was held on plaintiff's appeal that the amount in controversy was the sum of the value and the damages com- bined. Freeburger v. Caldwell, 5 Wash. 769; Hargrave v. Wilson, 39 La. Ann. 1116; Stevers v. Gunz, 23 Minn. 520. Judgment and Counterclaim Consoli- dated. On appeal to the U. S. Supreme Court by defendant from a judgment against him, it was held that he could add his counterclaim to said judg- ment in order to confer jurisdiction on the court. Clark v. Sidway, 142 U. S. 682. See also Lovell v. Craigin, 136 U. S. 130; Telford v. Garrels, 132 111. 550; Francis v. Leak (Ind. App., 1892), 31 N. E. Rep. 212; Bowlus v. Brier, 87 Ind. 391; Wysor v. Johnson, i Ind. App. 419; Hutts v. Williams, 55 Ind. 237; Shriver v. Bowen, 57 Ind. 266; Little v. Danville, etc., Plank Road Co., 18 Ind. 86; Parsley v. Eskew, 73 Ind. 558; Uplinger v. Kettering, 43 Iowa 483 ; Crawford v. West Side Bank, 92 N. Y. 631 ; Cass v. Higen- botam, 100 N. Y. 248. But see also below, note i to UNAGGREGATED AMOUNT SEVERAL CLAIMS, etc.; and contra, Madison v. Spitsnogle, 58 Iowa 369; Fox v. Duncan, 60 Iowa 321. 1. Arkansas. Berry z/.Linton,i Ark. 252; Wilson v. Mason, 3 Ark. 494; Col- lins v. Woodruff, 9 Ark. 463; Gregory v. Williams, 24 Ark. 177; Mannington v. Young, 35 Ark. 287. Georgia. Epsten v. Levenson, 79. Ga. 718. Indiana. States. Forry, 64 Ind. 260; Luce v. Shoff, 70 Ind. 152. Kentucky. Lightfoot v. Payton, Hardin(Ky.)3. Louisiana. Stevenson v. Weber, 29- La. Ann. 105; Larrieux ^.Crescent City Live-Stock, etc., Co., 30 La. Ann. 609. Mississippi. Grayson v. Williams^ Walk. (Miss.) 298, 12 Am. Dec. 568; Ash v. Lee, 51 Miss. 101. Missouri. Gerber v. McCoy, 23 Mo. App. 295; Bridle v. Grau, 42 Mo. 360 Pennsylvania. Gault v. Vinyard, 26 Pa. St. 282. Texas. Ferguson v. Culton, 8 Tex. 283; Nichols v. Snow, 42 Tex. 72. United States. Woodman v. Lati- mer, 2 Fed. Rep. 842; Massa v. Cut- ting, 30 Fed. Rep. i; Rich v. Bray, 37 Fed. Rep. 273; King v. Wilson, i Dill. (U. S.) 556; Seaver v. Bigelows, 5 Wall. (U. S.) 208; Terry v. Hatch, 93 U. S. 44; Ballard Paving Co. v. Mul- ford, 100 U. S. 147; Chatfield v. Boyle, 105 U. S. 231; McMurray v. Moran, 134 U. S. 150; Handle^ v. Stutz, 137 U. S. 366; Walter v. Northeastern R. Co., 147 U. S. 370; Keels v. Central R. Co., 147 U. S. 374; Russell v. Stan- sell, 105 U. S. 303. Wisconsin. Howard v. Mansfield.. 30 Wis. 75. England. Brunskill v. Powell, 19 L. J. Exch. 362. See also Caldwell v. Beatty, 69 N. Car. 365. Thus, for example, in Northern Pac. R. Co. v. Walker, 148 U. S. 391, a bill in equity was filed by which an injunction was prayed to restrain the collection of taxes from a railroad company, by separate counties under distinct assessments, and it was held that the whole amount of such taxes could not be cumulated to confer ju- risdiction upon the Circuit Court, but that the claim in each individual case determined the amount in controversy. 2. Thomas v. Anderson, 58 Cal. 99; 724 TJnaggregated AMOUN1 IN CONTROVERSY. Amount. Separate Lien Claims in One Suit. In suits to enforce separate lien claims it is the several amounts of each claim, and not the aggre- gate sum of all in one suit, which determine the jurisdictional amount. 1 Claim and Set-off Cannot be United. When in a suit the court is with- out jurisdiction because the amount in dispute is too small, an off-set in a larger amount pleaded cannot be added to the claim to confer jurisdiction. 2 On Appeals Judgments Cannot Be United. The appellate court cannot acquire jurisdiction by uniting on an appeal thereto two judg- ments wholly separable and distinct. 3 an amount sufficient. Denison v. Den- ison, 16 Conn. 34; Nichols v. Hastings, 35 Conn. 546; Hoey v. Hoey, 36 Conn. 386; Hunt v. Rockwell, 41 Conn. 51; Camp v. Stevens 45 Conn. 92; Davis v. Seymour, 59 Conn. 531. See also Richards v. Marten, 23 W. R. 93; Kimpton v. Willey, 9 C. B. 719. But compare Main v. First School Dist., 18 Conn. 214, and Conn. Gen. Sts. sec. 812, according to which any number of separatecontracts can be joined to give jurisdiction, although each is less than the jurisdictional minimum. 2. Myers v. Lienning, 13 Cal. 650. On Appeals, for same principle, see Smith v. Merchants' Mut. Ins. Co., 33 La. Ann. 1071; Prejeanz/. Lecompte,4i La. Ann. 747; State v. Judge, 42 La. Ann. 1084; Gore v. Kendig, 3 Rob. (La.) 387; Hanna v. Bartlette, 10 Rob. (La.) 438; Ex p. Goodwin, u Rob. (La.) 12; Lamorere v. Avery, 32 La. Ann. 1010; Dean v. Clarke, 5 La. Ann. .105; Tardos v. Toulon, 14 La. Ann. 432, 74 Am. Dec. 435 ; Stevenson v. Whitney, 33 La. Ann. 658; Colomb v. McQuaid, 36 La. Ann. 327; St. Clair v. Day, 89 N. Y. 357. Contra, semble, in the case of appeals, see ante, notes to VIII. AGGREGATED AMOUNT, SEV- ERAL CLAIMS, p. 722, note 2. 3. Thompson v. Adams, 82 Va. 672; Hartsook v. Crawford, 85 Va. 413; Gee v. Thompson, 39 La. Ann. 310; Marshall v. Holmes, 39 La. Ann. 313; State Bank v. Allen, 39 La- Ann. 806; Farwell v. Becker, 129 111. 261, 16 Am. St. Rep. 276; Kellar v. Palfrey, 8 La. Ann. 282; Riddell v. Smith, 6 La. Ann. 431; Armitage v. Barrow, 10 La. Ann. 78; Bazoni v. Marcera, 18 La. Ann. 136; State v. Judge, 18 La. Ann. 398; Louisiana, etc., R. Co. v. Hopkins, 33 La. Ann. 806; Gobs' Succession, 37 La. Ann. 428; Akin v. Cassiday, 105 111. 22; Aultman, etc., Co. v. Weir, 134 111. Tague v. Royal Ins. Co., 38 La. Ann. 456; Merritt v. Hozey, 4 Rob. (La.) 319; U. S. v. Cochrane, 5 Rob. (La.) 120; Armitage v. Barrow, 10 La. Ann. 78; Broadwell v. Smith, 28 La. Ann. 172; Louisiana, etc., R. Co. v. Hop- kins, 33 La. Ann. 806; Prevost v. Greig, 5 Martin N. S. (La.) 87. Com- pare People v. Love, 25 Cal. 520; State v. King, 5 Ind. 439. 1. Keystone Min. Co. v. Gallagher, 5 Colo. 23; Partlow v. Lawson, 2 B. Mon. (Ky.) 46; Copley v. Edwards, 5 La. Ann. 650; Harrison v. Moss, 41 La. Ann. 239; Davis v. Bargas, 41 La. Ann. 313; Adler v. Cannon, 42 La. Ann. 835; Lyons -v. Blum, 42 La. Ann. 638; Rymer v. Hawkins, 18 W. Va. 309; Bee -v. Burdett, 23 W. Va. 744; Love v. Pickens, 26 W. Va. 341; Ayers v. Blair, 26 W. Va. 558; Morrison v. Goodwin, 28 W. Va. 328. But compare Rhods v. Scholfield, 6 La. Ann. 251- In California. By the constitution stockholders of a corporation are lia- ble only in severally to creditors for corporate debts, and consequently, in a District Court whose jurisdictional minimum was $300, when several ac- tions against separate stockholders were consolidated, it was held that the court was without jurisdiction as to those stockholders against whom less than said minimum was claimed. Derby v. Stevens, 64 Cal. 287; Hy- man v. Coleman, 82 Cal. 650. Compare Sioux Falls Nat. Bank v. Swenson, 48 Fed. Rep. 621; Dakota, etc., Bank v. Swenson, 48 Fed. Rep. 626. In Connecticut. Different and dis- tinct demands in separate counts in one suit cannot be cumulated to con- fer jurisdiction when the several claims themselves are too small for that purpose, and this obtains even in a case where the final damage claim is in 725 Value Distinguished AMOUNT IN CONTROVERSY. from Amount. X. VALUE DISTINGUISHED FROM AMOUNT Property Eights involved. Where property itself or its title is in litigation, or some question per se anecting its enjoyment and possession, its value is the real matter in controversy, as distinguished from the claims of the contending parties. 1 (U. S.) 354; Ballard Paving Co. v. Mul- ford, 100 U. S. 147; Tupper v. Wise, no U. S. 398; Farmers' L. & T. Co. v. Waterman, 106 U. S. 265; Adams v. Crittenden, 106 U. S. 576; Schwed v. Smith, 106 U. S. 188; Ex p. Baltimore, etc., R. Co., 106 U. S. 5; Fourth Nat. Bank v. Stout, 113 U. S. 684; Ex p Phoenix Ins. Co., 117 U. S. 367; Hassall v. Wilcox, 115 U. S. 598; McMurray v. Moran, 134 U. S. 150; Wheeler v. Cloyd, 134 U. S. 537; Miller v. Clark, 138 U. S. 223. In Admiralty the same doctrine ap- plies. Thus in another leading case,, that of Oliver v. Alexander, 6 Pet. (U. S.) 143, which was a libel in admiralty against the owners of a vessel to re- cover seamens' wages, and also an at- tachment of the proceeds of a vessel in the hands of assignees, the libellants obtained a decree for the payment out of the proceeds to them respectively of sums each less than $1000, but amount- ing in all to more than $2000 (the then jurisdictional minimum of the U. S. Su- preme -.Court), and the assignees ap- pealed. The appeal was dismissed for want of jurisdiction, for the reason that the shipping articles constituted a several contract with each seaman, and although the libel was in form joint, yet the decree to each libellant was in reality several. Spear-z'. Place, 11 How. (U. S.) 525; Rich v. Lambert, 12 How. (U. S.) 352; The Nevada. 106 U. S. 154; Clifton v. Sheldon, 23 How. (U. S.) 481; Stratton v. Jarvis, 8 Pet. (U. S.)4. 1. California. Cullen v. Langridge, lyCal. 67; Shealorz/. Amador County, 70 Cal. 564. Connecticut. Scripture v. Johnson, 3 Conn. 211; Griswold v. Mather, 5 Conn. 438. .Michigan. Fuller v. Grand Rapids, 40 Mich. 395. Louisiana. Renneberg's Succession, 15 La. Ann. 661; Werlein v. Merchants' Mut. Ins. Co., 30 La. Ann. 1399; Queyrouze z>. Thibodeaux, 30 La. Ann. 1114; Meyer v. Logan, 33 La. Ann. 1055; State v. Judges, 33 La. Ann. 1051; Bouligny v. White, 5 La. Ann. 31; State v. Judge, 12 La. Ann. 48; 137; Zable v. Harris, 82 Ky. 473; Os- wald v. Morris, 92 Ky. 48; Fleshman v. Fleshman, 24 W. Va. 342; Umbarger v. Watts, 25 Gratt. (Va.) 167; Whitmer v. Shitzer, 81 Va. 64. Compare State v. Burke, 33 La. Ann. 969; State v. Mac- Kenzie, 39 La. Ann. 508; Wimbish v. Gross, 7 Leigh (Va.) 331. Thus where two wards sued their guardian's estate, and together ob- tained a decree for $639.79, but the amount decreed to each was less than $500, it was held that the appellate court was without jurisdiction, because the amount decreed to each was the amount in controversy, and the consti- tution of Virginia, in which state the case arose, fixed the appellate court's jurisdiction at a minimum of $500. ' Martin v. Fielder (Va., 1887). 4 S. E. Rep. 602. On Appeals to the Supreme Court of the United States. " The rule is well settled * * * that when distinct causes of action in favor of distinct parties are united in one suit, and distinct judg- ments are rendered for or against sev- eral parties, their judgments cannot be united to give us jurisdiction." Per Waite, C.J., in Hawley v. Fairbanks, 108 U. S. 543- The leading case of Gibson v. Shu- feldt, 122 U. S. 27, was one in which a debtor had assigned his property to secure a preferred debt, and other cred- itors sued the debtor, the trustee, and the preferred creditor, and the defend- ants sought no affirmative relief; the assignment was adjudged to be void in the lower court as against the plain- tiffs, and the decree ordered a distri- bution among them. On defendant's appeal it was held that the U. S. Su- preme Court was without jurisdiction, except as to those plaintiffs who had individually recovered more than $5000. Chatfield v. Boyle, 105 U. S. 231. See also McCarthy v. Provost, 103 U. S. 673; Henderson z/.Wadsworth, 115 U. S. 264; Henderson v. Carbondale Coal, etc., Co., 140 U. S. 25; Chapman v. Handley, 151 U. S. 443; Merrill v. Petty, 16 Wall. (U. S.) 338; Terry v. Hatch, 93 U. S. 44; Stewart v. Durham, 115 U. S. 61; Rodd v. Heartt, 17 Wall. 726 Value Distia guished A MO UNT IN CONTRO VERS Y. from Amount. Suits in Ejectment. Thus in ejectment cases the matter in dispute is the value of the property, either as set forth in the declaration or as established by the proof. 1 In Bills Quia Timet. So also in bills to quiet the title of prop- erty, whose possession and enjoyment is threatened, the amount in controversy is the whole value of the property. 2 Enforcing Liens Against Land. In suits the object of which is to sell land to pay debts or to enforce a lien of judgment or attach- ment thereon, the value of the land, apart from the debt or debts or the claim of damages, is the amount in controversy. 3 In Suits Annulling instruments. Where a creditor of the grantor sues the grantee of a deed of certain property for the purpose of setting the deed aside as fraudulent, the value of the land Thompson v. Lemelle, 32 La. Ann. 932; Rhodes v. Black, 34 La. Ann. 406; Lombard v. Belanger, 35 La. Ann. 311; State v. Lappeyrollerie, 38 La. Ann. 264; Godshaw v. Judges, 38 La. Ann. 643; Schliederz'. Martinez, 38 La. Ann. Pasley v. McConnell, 40 La. Ann. Wickham v. Nalty, 42 La. Ann. Simon v. Richard, 42 La. Ann. Boggs v. Hays, 44 La. Ann. 847 609; 423; 842; 859- Missouri. Gartside v. Gartside, 42 Mo. App. 513; Evens, etc., Fire Brick Co. v. St. Louis Smelting, etc., Co. ,48 Mo. App. 634. United States. Simon v. House, 46 Fed. Rep. 317; Mississippi, etc., R. Co. v. Ward, 2 Black. (U. S.) 485; Parker v. Morrill, 106 U. S. i; Smith v. Adams, 130 U. S. 175; Kenaday v. Edwards, 134 U. S. 117; Vicksburg, etc., R. Co. v. Smith, 135 U. S. 195. Virginia. Barker v. Jenkins, 84 Va. 895. West Virginia. Ayers v. Blair, 26 W. Va. 558; Stanley v. Hubbard, 27 W. Va. 740. See also Burke v. Grace, 53 Conn. 513; Bruneau v. Haughton, 16 La. Ann. 47; Rainey v. Herbert, 55 Fed Rep. 443, as modifying and affirm- ing Herbert v. Rainey, 54 Fed. Rep. 248. Thus in Smith v. Bivens, 56 Fed. Rep. 352, in a bill for an injunction to restrain the trespassing of cattle on complainant's land, which bill alleged that the land was only good for pastur- age, and that he, complainant, is en- tirely deprived of his property rights therein, the amount in dispute was held to be the value of the land, in fix- ing the question of jurisdiction. And in Chaffe v. De Moss, 37 La. Ann. 186, where a judgment creditor of a hus- band, whose claim was less than $2000, sought to have the purchase of a plantation in the name of the wife declared a " simulation " and as really made for the husband's benefit, it was held that the case was appealable to the supreme court in Louisiana, whose minimum jurisdiction was $2000, be- cause the property was worth $6000. Contra, semble. Harris v. Stockett, 35 La. Ann. 387; Farmers' Bank v. Hooff, 7 Pet. (U. S.) 168. 1. Crawford v. Burnham, i Flip. (U. S.) 116; Eaton v. Calhoun, 2 Flip. (U.S.) 593; Lanninge/. Dolph, 4 Wash. (U. S.) 624; Green v. Liter, 8 Cranch (U. S.) 242; Duwell v. Bohmer, 2 Flip. (U. S.) 168; Vicksburg, etc., R. Co. v. Smith, 135 U. S. 195; Grant v. M'Kee, i Pet. (U. S.) 248; Den v. Wright, i Pet. (C. "C.) 64; Simon v. House, 46 Fed. Rep. 317; Greene v. Tacoma, 53 Fed. Rep. 562. 2. Lehigh Zinc, etc., Co. v. New Jersey Zinc, etc., Co., 43 Fed. Rep. 545- 3. Peters v. Goodrich, 3 Conn. 146; Walker v. Malin, 94 111. 596; Curtis v. Blacketer, 13 La. Ann. 592; Danjean v. Blacketer, 13 La. Ann. 595; Tertrou v. Comeau, 28 La. Ann. 633; Wood v. Rocchi, 32 La. Ann. 1120; Francisco v. Gauthier, 35 La. Ann. 393; Testant v. Belot, 33 La. Ann. 1469; Phillips v. Hoffman, 5 Coldw. (Tenn.) 251; Lane v. Howard, 22 Tex. 7; Hargrave v. Simpson, 25 Tex. 396; Buckner v. Metz, 77 Va. 107. See also Casey v. Harvey, 14 111. 45. Compare Vaughan v. Thompson, 15 111. 39. Contra, Hoppe v. Byers, 39 Iowa 573: May v. Will- iams, 61 Miss. 125, 48 Am. Rep. 80. 727 Immaterial. AMOUNT IN CONTROVERSY. Immaterial. conveyed, and not the debt, is the amount in controversy on appeal. 1 Specific Personal Property. In suits to test the title to, or for the recovery of, specific personal property, the damages claimed or recovered are generally merely an incidental matter ; it is the value of the property which is the determinative factor upon a question of jurisdiction vel non* XL AMOUNT IMMATERIAL. An exception to the general rule hereinbefore laid down, as governing the question of the amount in controversy, is to be found in a certain class of cases controlled by special statutory enactments, which render the jurisdiction of courts, under certain circumstances, wholly independent of the amount in controversy. 3 1. Kahn v. Kerngood, 80 Va. 342; Black v. McStea, 37 La. Ann. 620; Solari v. Barras (La., 1893), 13 So. Rep. 627; Handy v. New Orleans, 39 La. Ann. 107; Livingstone v. Hardie, 41 La. Ann. 311; Moore v. Ringuet (La., 1893), 13 So. Rep. 670. See also Sharon v. Terry, 36 Fed. Rep. 337. 2. Astell v. Phillippi, 55 Cal. 265; Shealor v. Amador County, 70 Cal. 564; Fowler v. Bishop, 32 Conn. 199; Cummins v. Holmes, 107 111. 552; Tyler v. Bowlus, 54 Ind. 333; Garrett v. Wood, 3 Kan. 231; Leslie v. Reber, 4 Kan. 315; State v. Lagarde, 21 La. Ann. 18; State v. Judge, 21 La. Ann. 107; Lallande v. Ball, 21 La. Ann. 186; Gogreve v. Windhorst, 21 La. Ann. 296; State v. Richardson (La., 1894), 14 So. Rep. 915; Ridlon v. Emery, 6 Me. 261; Natchez v. Mallery, 54 Miss. 499; Neibardt v. Kilmer, 12 Nev. 35; Godsey v. Weatherford, 86 Tfenn. 670; Peyton v. Robertson, 9 Wheat. (U. S.) 527; The Sydney, 139 U. S. 331 ; Vaiden v. Bell, 3 Rand. (Va.) 448. Compare State v. Pitot, 21 La. Ann. 336; Payne v. Weems, 36 Mo. A pp. 54. Value of an Office. In State v. Owens, 63 Tex. 261, which was an ac- tion of quo warranto to oust an incum- bent from his office, it was held that the test of the court's jurisdiction was the value of the office. Ritchie v. Mauro, 2 Pet. (U. S.)243. The Salary of an Office is determina- tive of its value in controversy. State v. Judge, 20 La. Ann. 574; Smith v. Whitney, 116 U. S. 167; Smith v. Adams, 130 U. S. 175. The Business Value, not the sum for which a property would sell at a forced sale, is the jurisdictional value in con- troversy. Berthold v. Hoskins, 38 Fed Rep. 772. In Texas. By Tex. Rev. Sts. art. 4823, in suits affecting the value of property in the District and County Courts, it was enacted that it was not the value of the property as proven, but the value assessed by the officer serving the writ which fixed the amount in controversy. Cleveland v. Tufts, 69 Tex. 580. Compare Minor v. Budd, 38 La. Ann. 99. 3. In Alabama. Circuit Courts are not limited to their ordinary jurisdic- tional amount in suits against an officer for failure to return an execu- tion to the Supreme Court. Huggins v. Ball, 19 Ala. 587. In California. The Supreme Court on appeal, where the question is not one on the merits, but is only as to whether an inferior tribunal had or had not jurisdiction. Heinlen v. Phillips, 88 Cal. 557; reversing Bienen- field v. Fresno Milling Co., 82 Cal. 425; Winter v. Fitzpatrick, 35 Cal. 269; Morley v. Elkins, 37 Cal. 456; Palache v. Hunt, 64 Cal. 474. District Court when title to real estate is in- volved, unless property's value is too small. Cullen v. Langridge (1860), 17 Cal. 67. In Colorado. The Supreme Court in suits relating to a freehold or a fran- chise. Crane v. Farmer (1890), 14 Colo. 294. In Connecticut Supreme Court. In actions of trespass involving title to land an appeal may be had although the sum claimed is below the ordinary jurisdictional amount. Dunton v. Mead, (1827), 6 Conn. 418. Compare Fuller v. Topliff, 10 Conn. 60; Scovill v. Seeley, 14 Conn. 238; Richards v. Eno, 23 Conn. 413. In Illinois. The Supreme Court in appeals from appellate court in ques- 728 Immaterial. A MO UN T IN CONTRO VERS Y. Immaterial. Statutes rendering jurisdiction independent of amount are strictly construed. Matters not properly contained therein will tions involving a freehold or a fran- chise. Lequatte v. Drury (1880), 6 111. App. 389; Patterson z>. McKinney, 6 111. App. 394; Daly v. St. Patrick Catholic Church, 6 111. App. 458 ; Trustees v. Beale, 6 111. App. 536; Baber v. Pittsburg, etc., R. Co., 93 111. 342; Gage v. Busse, 94 111, 590; Rich- ards v. People, 100 111. 423; Peck -v. Herrington, 104 111. 88; Chicago, etc., R. Co. v. Dunbar, 95 111. 571. Compare Talcott v. Schuh, 95 111. 201; Graham v. People, 104 111. 321. In Indiana (1879) Supreme Court, on appeal in cases originating in circuit or superior courts, but not those heard before justices of the peace or mayors of cities. Hill v. Shannon, 68 Ind. 470; Hancock County v. Binford, 70 Ind. 208 ; Plymouth v. Milner, 117 Ind. 324. Courts of Common Pleas. Ordinary jurisdiction is unlimited in amount by Act of 1859. Jenkinson v. Ewing (1861), 17 Ind. 505. Justices of the peace in distraint proceedings by Rev. Sts. 1838. Ezra v. Manlove (1843), 6 Blackf. (Ind.) 454. In proceedings against tenants for holding over by act of 1838. Ricketts v. Ash (1844), 7 Blackf. (Ind.) 274 ; Dougherty v. Thompson, 7 Blackf. (Ind.) 277. In proceedings to try right of property taken on execution. Griffin v. Ma- lony (1859), 13 Ind. 402. In Iowa Supreme Court, where real estate is involved. See Code, 3173; McBurney v. Graves (1885), 66 Iowa 314- In Kentucky Court of Appeals. Where the case involves title to real property either party may appeal irre- spective of the amount in controversy. Moore v. Boner, 7 Bush (Ky.) 26; Caskey v. Lewis (1854), 15 B. Mon. (Ky.) 27. Circuit Courts in cases of liens affecting land. Bush v. Williams (1869), 6 Bush (Ky.) 405. In Louisiana Supreme Court. In ac- tions of nullity of judgments where there is no pecuniary amount. Bryant v. Austin (1884), 36 La. Ann. 808 ; Cobb v. McGuire, 36 La. Ann. 801 ; New Orleans v. Arthurs, 36 La. Ann. 98; Sweeney v. Seiler, 37 La. Ann. 585. Compare New Orleans v. Schoen- hausen, 39 La. Ann. 237; Johnson v. Cavanac (1888), 40 La. Ann. 773. In Maine. The supreme j-udicial court on appeal, sitting as the Supreme Court of Probate by Rev. Sts. ch. 66, sec. ii. Merrill v. Grossman (1878), 68 Me. 412. Also original as well as con- current jurisdiction with justices of the peace in actions of trespass q. c. /., without reference to amount. Burn- ham v. Ross (1860), 47 Me. 456. In Massachusetts, in interlocutory questions of law, appeals will lie to supreme judicial court, although the ad damnum be for less than the requi- site amount, and although on a trial of the case on its merits no appeal would lie because of that fact. Hovey v. Crane (1830), 10 Pick. (Mass.) 440. In Minnesota. District Courts under the constitution have a general orig- inal jurisdiction, unlimited in amount in civil actions. Agin v. Heyward, 6 Minn, no; Southern Minn. R. Co. v. Stoddard, 6 Minn. 150; Fowler v. Atkinson, 6 Minn. 503; Cressey v. Gier- man, 7 Minn. 398 ; Thayer v. Cole (1865), 10 Minn. 215. In Missouri. Circuit Courts have exclusive jurisdiction to enforce liens against railroads to an unlimited amount. Cranston v. Union Trust Co. (1881), 75 Mo. 29. Justices of the peace are unrestricted in amount to enter judgments on motion on bonds in attachment suits commenced before them by Rev. Code, 1855. McDowell v. Morgan (1863), 33 Mo. 555. And also in collateral matters, such as in- terpleas, growing out of suits over which originally they had jurisdic- tion. Mills v. Thomson (1875), 61 Mo. 415. In Mississippi. Justices of the peace have a similar unlimited jurisdiction in incidental matters to suits regularly before them. Bernheimer v. Martin (1889), 66 Miss. 486. In North Carolina Supreme Court. In suits affecting enforcement of claims against real estate. Charlotte Plan- ing Mills v. McNinch, 99 N. Car. 517; Dougherty v. Sprinkle, 88 N. Car. 300; Webster v. Laws, 89 N. Car. 224; Smaw v. Cohen, 95 N..Car. 85; Neville v. Pope (1886), 95 N. Car. 346. Justices of the peace, in actions on former jus- tices' judgments. Jones v. Jones, 3 Dev. (N. Car.) 360; Bryan v. Wash- ington, 4 Dev. (N. Car.) 479; Morgan v. Allen (1844), 5 Ired. (N. Car.) 156. In New York Supreme Court, in ap- peals, where the action is "affecting 729 Immaterial. A MO UN T IN CON TRO VERS Y. Immaterial. not be read into the statutes in order to prevent the ordinary and statutory attaching of a court's jurisdiction. 1 237; U. S. v. Davidson (1864), i Biss. (U.S.) 433- Where United States is a plaintiff the federal courts have jurisdiction en- tirely independent of what amount may be involved in controversy; neither the act of Congress of March 3, 1875, nor that of March 3, 1887, de- nning its jurisdiction as to the amount involved, have any application. U. S. v. Shaw, 39 Fed. Rep. 433; U. S. v. Kentucky River Mills (1891), 45 Fed. Rep. 273. See also an old case in North Carolina, holding a similar doc- trine as to the sovereign state. State v. Garland, 7 Ired. (N. Car.) 48. Where United States is Appellant, in a case of judgment rendered against it in the Court of Claims, appealing to the Supreme Court. U. S. v. Davis, 131 U. S. 36; U. S. v. Mosby, 133 U. S. 273- In Vermont, in the Supreme Court, on appeal, in a case involving a ques- tion of building and repairing a parti- tion fence, involving also a question of title. Hall v. Niles (1872), 44 Vt. 439- In Virginia Supreme Coitrt of Ap- peals. Where a freehold or franchise is in question in a suit, the sum recovered need not amount 108150, the appellate jurisdictional minimum, to enable the appellate court to take cognizance. Cooke v. Piles, 2 Munf. (Va.) 151; Minor v. Goodall, 3 Call. (Va.) 393; Staunton v. Stout (1889), 86 Va. 321; but the matter of franchise must be directly, not collaterally, involved. Hutchinson v. Kellam (1811), 3 Munf. (Va.) 202. Similarly when the constitu- tionality of an act is involved, under provision of the constitution the amount involved is immaterial. Nor- folk, etc., R. Co. v. Pendleton (1890), 86 Va. 1004. In West Virginia Supreme Court of Appeals. On appeal in an action to set aside a deed as fraudulent and to sub- ject land for a debt, irrespective of the amount of the debt. McClaugherty i . Morgan (1892), 36 W. Va. 191. In Washington. An action to fore- close a mechanic's lien is an equitable one and is appealable, without regard to the amount in controversy. Fox v. Nachtsheim (1892), 3 Wash. 684. 1. Thus, for example, in a suit to re- cover damages for a personal injury the title to real property or an interest therein," under Code Civ. Proc. sec. 191, subsec. 3. Warren v. Wilder, 114 N. Y. 209; Getman v. Ingersoll (1889), 117 N. Y. 75. City Courts of New York. In all actions which seek a judgment for money only. Root v. Meyer (1885), 2 How. Pr. N. S. (N. Y. City Ct.) 20. Justices of the Peace. Over counter- claims which clearly arise out of the same transaction as the claim sued on, when the latter is within the jurisdic- tion. Heigel v. Willis (Supreme Ct., 1889), 3 N. Y. Supp. 497. Equitable Actions. The N. Y. Code of Civ. Proc. and the constitution of 1846, by implication, abolished all limitations as affecting the jurisdiction of courts in equitable actions. Sars- field v. Van Vaughner (1862), 38 Barb. (N. Y.) 444- In Pennsylvania Courts of Common Pleas had'a general civil jurisdiction to any amount. Palmer v. Com. (1820), 6 S. & R. (Pa.) 245. In Texas District Courts, in suits in- volving questions of license taxes. Aulanier v. Governor (1846-47), i Tex. 653; also in questions affecting real estate. Jenkins v. Cain (Tex., 1889), 12 S. W. Rep. 1114; and, having once acquired jurisdiction, retains it to fully adjudicate all collateral matters, irre- spective of amount. Peticolas v. Car- penter (1880), 53 Tex. 23 ; Heiden- heimer z/. Johnson (1890), 76 Tex. 200. Federal Courts 7. S. Supreme Court. On appeals from Circuit Courts of the United States in questions touch- ing the revenue laws, by act of May 31, 1844, U. S. v. Carr, 8 How. (U. S.) i; also in cases " touching patent rights," under Rev. Sts. sec. 699, St. Paul Plough Works v. Starling (1888), 127 U. S. 376; also in appeals from the Su- preme Court of Utah Territory in a suit drawing in question the power of the territorial governor under the or- ganic act to appoint a person to be auditor of public accounts, Clayton v. Utah (1889), 132 U. S. 632. Circuit Courts in suits affecting revenue laws, under U. S. Rev. Sts. sec. 629. Ames v. Hager(i888), 36 Fed. Rep. 129; U. S. v. Huffmaster, 35 Fed. Rep. 81; Yardley v. Dixon (1891), 47 Fed. Rep. 835; Wetmore v. Rice, i Biss. (U. S.) 73 Appealable. AMOUNT IN CONTROVERSY. Appealable. XII. APPEALABLE AMOUNT 1. When Plaintiff Appeals. Much of the apparent conflict as to what constitutes the amount in contro- versy on appeal vanishes if the principle already laid down, that the real amount is after all the final and controlling jurisdictional question, be borne constantly in mind and applied to the chang- ing circumstances of particular cases. For this reason, when the plaintiff appeals from a judgment against him or for less than his claim, the amount claimed by him below is manifestly still that which he is seeking to enforce and therefore constitutes prima facie the amount in controversy in the appellate court. 1 brought against the District of Colum- bia, said injury being caused by de- fective streets in the city of Washing- ton, in which the court refused to charge that the District is not re- sponsible for its government because the United States has imposed the same upon it, does not "draw in ques- tion " any statute of the United States in the sense of that clause as con- tained in the statute, and thus confer jurisdiction on the U.S. Supreme Court on appeal irrespective of the amount recovered below in judgment. Dis- trict of Columbia v. Gannon, 136 U. S. 227; Baltimore, etc., R. Co. v. Hop- kins, 130 U. S. 210; In reCra.it, 124 U. S. 370; U. S. v. Hill, 123 U. S. 681; U. S. v. Broadhead, 127 U. S. 212; Cogswell v. Fordyce, 128 U. S. 391. Compare Bowman v. Chicago, etc., R. Co., 115 U. S. 611; U. S. v. Carr, 8 How. (U.S.) i. Local statutory provisions are large- ly controlling, of necessity, whenever jurisdiction is held to be independent of some specific amount made requisite also by local enactment. Such local statutory provisions, it is quite ap- parent, frequently do not even come into litigation. Recourse must there- fore be had to the statutes and Codes of the various states for anything like an exhaustive examination of the im- materiality of amount as affecting ju- risdiction. Such an examination is naturally beyond the scope of this article, which professes to deal only with adjudged cases. 1. In the case of Walker v. U. S., 4 Wall. (U. S.) 163, Chase, C.J., said: "It has been a good deal controverted whether the sum or value in contro- versy is to be determined by refer- ence to the amount claimed or the amount of the judgment or the amount in dispute in this court. It has long been settled, how- ever, that when the judgment is for the defendant, or for the plaintiff and less than $2000" (the then maximum jurisdictional amount of the U. S. Su- preme Court), "and the plaintiff sues out a writ of error, the court has jur- isdiction if the damages claimed in the declaration exceed that sum." United States. McCormick v. Gray. 13 How. (U. S.) 26; Cooke v. Wood- row, 5 Cranch (U. S.) 13; Wise v. Columbian Turnpike Co., 7 Cranch (U. S.) 276; Gordon v. Ogden, 3 Pet. (U. S.) 33; Smith v. Honey, 3 Pet. (U. S.) 469; Hulsecamp v. Teel, 2 Dall. (U. S.) 358; Scott v. Lunt, 6 Pet. (U. S.) 349; Farmers' Bank v. Hooff, 7 Pet. (U. S.) 168; Clark v. Bever, 139 U. S. 96; Lee v. Watson, i Wall. (U. S.) 337; Schacker v. Hartford F. Ins. Co., 93 U. S. 241; U. S. v. Mosby, 133 U. S. 273; Johnson v. St. Louis, etc., R. Co., 141 U. S. 602. Illinois. Brant v. Gallup, in 111. 487, 53 Am. Rep. 638. Indiana. Morton v. Gravel Road Co. v. Wysong, 51 Ind. 4; Flora v. Russell (Ind. App., 1892), 31 N. E. Rep. 936. Iowa. Ormsby v. Nolan, 69 Iowa 130. Kentucky. Vance v. Cox, 2 Dana (Ky.) 152; Com. v. Fugate, i T. B. Mon. (Ky.) i; Miller v. Yocum, 12 T. B. Mon. (Ky.) 421; Searcy v. Switzer, 13 T. B. Mon. (Ky.) 352; Brandies v. Stewart, i Mete. (Ky. )395; Williams v. Wilson, 5 Dana (Ky.) 596; Evans v. Sanders, 10 B. Mon. (Ky.) 291. Louisiana. State v. Strickland, 35 La. Ann. 215; Aymar v. Bourgeois, 36 La. Ann. 392. Missouri. Mathews v. Danahy, 25 Mo. App. 354; Willi v. Lucas, 40 Mo. App. 70. New York. Burleigh v. Center, 74 N. Y. 608; Miele v. Deperino, 135 N. Y. 6x8. 73 1 Appealable. AMOUNT IN CONTROVERSY. Appealable. On Appeal from a fcefusal by Court to Enter a Judgment. An exception arises where plaintiff's demand below is enough to confer juris- diction, but his recovery is not, for in such a case no appeal will lie from the refusal by the lower court to enter judgment on the verdict if that verdict is below the appellate jurisdictional amount. 1 2. When Defendant Appeals #. No COUNTERCLAIM FILED. On the other hand, the sum recovered in judgment below furnishes the amount in controversy when the defendant appeals, provided he has filed no counterclaim and sought no affirmative relief in the trial court. 2 Virginia. Umbarger v. Watts, 25 Gratt. (Va.) 167; Harman v. Lynch- burg, 33 Gratt. (Va.) 37; Fink v. Den- ny. 75 Va. 663; McCrowell v. Burson, 79 Va. 290; Duffy v. Figgat, 80 Va. 664; Wirtz v. Osburn, 83 Va. 227: Haw- kins v. Gresham, 85 Va. 34; Pitts v. Spotts, 86 Va. 71. West Virginia. Marion Machine Works v. Craig, 18 W. Va. 559; Love -v. Pickens, 26 W. Va. 341; Arnold v. Lewis County Court, 38 W. Va. 142. England. Harris v. Dreesman, 9 Exch. 485. But compare Leahy v. Davis, 49 Mo. App. 5I9- Defendant's Counterclaim when filed does not in any manner affect the amount, when the plaintiff appeals. Bowman v. Gary, Minor (Ala.) 326; Overton v. Simon, 10 La. Ann. 685; Pickett v. Hollingsworth (1893), 6 Ind. App. 436. Contra, semble, Kerr v. Sim- mons, 82 Mo. 269; Mackay v. Banister, 53 L. T. N. S. 567. The Evidence Produced, although in conflict with the claim, in no manner can affect plaintiff's right to appeal as fixed by the amount of the latter. Zoellerz/. Riley, 98 N. Y. 668. Compare, contra, semble, Thomson v. Wales, Kirby (Conn.) 35; Williams v. Leeds (1787), Kirby (Conn.) 351. 1. Jewell v. Sullivan, 130 Ind. 574; Hancock v. Barton, i S. & R. (Pa.) 269; Wilson v. Daniel, 3 Dall. (U. S.) 401; Cooke v. Woodrow, 5 Cranch (U. S.) 13; Cooke v. Piles, 2 Munf. (Va.) 151; Minor v. Goodall, 3 Call (Va.) 393; Henry v. Elcan, 2 Munf. (Va.) 541; Hepburn -v. Lewis (1800), 2 Call (Va.) 498; Lewis v. Long, 3 Munf. (Va.) 136. The Recovery and Not the Claim is the Appellate Amount in Controversy where there is a special verdict for plaintiff but a general judgment for defendant. Buscher v. La Fayette (Ind. App., 1894), 36 N.E. Rep. 371. See also McCrowell v. Burson, 79 Va. 290. The recovery is also the test where a plaintiff appeals from an affirmative judgment against him, that is, a judg- ment not only refusing his claim, but finding him liable to defendant. Holmes v. Hull, 48 Iowa 177. The recovery in the lower court be- comes also the appellate amount in controversy where plaintiff appeals from the judgment of an intermediate appellate court reversing a judgment found for him in said lower court. Thus the case of The D. R. Mar- tin, 91 U. S. 365, was a suit by B., the libellant, to recover damages for his wrongful eviction from the steam- boat D. R. M. He demanded in his libel $25,000 damages, but in the District Court recovered only $500. From this decree the claimant ap- pealed. B., the libellant, did not ap- peal. The Circuit Court reversed the decree, and dismissed the libel. B. then appealed to the U. S. Supreme Court, and the court said: " B., having failed to appeal from the decree of the District Court, is concluded by the amount there found in his favor. * * * In the Circuit Court, the matter in controversy was his right to recover the sum which had been awarded him as damages. * * * The matter in dis- pute here is that which was in dispute in the Circuit Court." Wagner v. Long Island R. Co., 70 N. Y. 614; Schenck v. Marx, 125 N. Y. 703; Dominion Salvage Co. v. Brown, 20 Can. Sup. Ct. Rep. 203; Cossette v. Dun, 18 Can. Sup. Ct. Rep. 222. 2. Waite, C.J., said in the case of Hilton v. Dickinson (1887), 108 U. S. 165: "It has always been assumed since Cooke v. Woodrow, 5 Cranch (U. S.) 13, that when a defendant brought 732 Appealable. A MO UN T IN CONTRO VERS Y. Appealable. The Amount Claimed Below. In some states a different rule prevails, although with some conflict of opinion; and the amount claimed in the lower court is frequently, if not invariably, the amount in controversy, even when the defendant is the appellant. 1 Kentucky. Moore v. Boner, 7 Bush (Ky.) 26; Tipton v. Chambers, i Mete. (Ky.) 565; Revill v. Pettit, 3 Mete. (Ky.) 314: Louisville, etc., R. Co. v. Wade, 89 Ky. 255; Brandies v. Stewart, i Mete. (Ky.) 395; Williams v. Wilson, 5 Dana (Ky.) 596 ; Turner v. Pash (Ky., 1891X17 S. W. Rep. 809; Mullins v. Bullock (Ky., 1892), 19 S. W. Rep. a case here the judgment or decree against him governed our jurisdiction, unless he had asked affirmative relief which was denied, and this because, as to him, jurisdiction depended on the matter in dispute here. (If the origi- nal demand against him was for more than our jurisdictional limit and the recovery for less, the record would show * * * that his object in bring- ing the case here * * * was to get more.) " United States. Knapp v. Banks, 2 How. (U. S.) 73; Sampson v. Welsh, 24 How. (U. S.) 207; Walker v. U. S., 4 Wall. (U. S.) 163; Merrill v. Petty, 16 Wall. (U. S.) 338; Gordon v. Ogden, 3 Pet. (U. S.) 33; U. S. Bank v. Daniel, 12 Pet. (U. S.)32; Thompson v. But- ler, 95 U. S. 694; Troy v. Evans, 97 U. S. i; Pierce v. Wade, 100 U. S. 444; Lamar v. Micou, 104 U. S. 465; Dodge v. Knowles, 114 U. S. 430; Williams- port Bank v. Knapp, 119 U. S. 357; District of Columbia v. Gannon, 130 U. S. 227; District of Columbia v. Emerson, 130 U. S. 229; Keller v. Ash- ford, 133 U. S. 610; The Propeller Burlington, 137 U. S. 386. Alabama. Cothran v. Weir, 3 Ala. 24. Arizona. Grounds v. Ralph, i Ari- zona 227. Illinois. Emerson v. Clark, 3 111. 489; Lake Erie, etc., R- Co. v. Faught, 129 111. 257; Martin t. Stubbins, 126 111. 387, 9 Am. St. Rep. 620; Svanoe v. Jurgens (1893), 144 111. 507. Indiana. Bogart v. New Albany, I Ind. 38; Tripp v. Elliott, 5 Blackf. (Ind.) 168; Reed v. Sering, 7 Blackf. (Ind.) 135; Jones v. Yetman, 6 Ind. 46; Overton v. Overton, 17 Ind. 226; Mof- fitt v. Wilson, 44 Ind. 476; Bowers v. Elwood, 45 Ind. 234; Quigley v. Au- rora, 50 Ind. 28; Dailey v. Indianap- olis, 53 Ind. 483 ; Hall v. Spurgeon, 23 Ind. 73; Painter v. Guirl, 71 Ind. 240; Baltimore, etc., R. Co. v. John- son, 83 Ind. 57; Galbreath v. Trump, 83 Ind. 381; Baker v. Groves, 126 Ind. 593; Cincinnati, etc., R. Co. v. Mc- Dade, in Ind. 23; Louisville, etc., R. Co. v. Steele (1893), 6 Ind. App. 183. Iowa. Cooper v. Dillon, 56 Iowa 367- Kansas. Richmond v. Brummie, 52 Kan. 247. Mississippi. Ward v. Scott, 57 Miss. 826. Missouri. State v. St. Louis Ct., 87 Mo. 569 ; Reichenbach v. United Masonic Ben. Assoc., 112 Mo. 22; Ellis v. Harrison, 104 Mo. 270. New York. Brown v. Sigourney, 72 N. Y. 122; Graville v. New York, etc., R. Co., 104 N. Y. 674. Utah. Openshaw v. Utah, etc., R. Co., 6 Utah 268. . West Virginia. Marion Machine Works v. Craig, 18 W. Va. 559. Virginia. Gage v. Crockett, 27 Gratt. (Va.) 735; Harman v. Lynch- burg, 33 Gratt. (Va.) 37; Skipwith v. Young, 5 Munf. (Va.) 276; Duffy v. Figgat, 80 Va. 664. Canada. Ontario, etc., R. Co. v. Marcheterre, 17 Can. Sup. Ct. Rep. 141. England. Macfarlane v. Leclaire, 15 Moore P. C. C. 181; The Doctor Van Thumnen Tellon, 20 L. T. N. S. 960; The Elizabeth, L. R. 3 Adm. 33. Compare Campbell v. Smith, 32 Gratt. (Va.) 288; Washington County v. Parlier, 9 111. 353. Amount Not Aided by Other Question Involved. In an action for assault, where less than the jurisdictional amount is recovered, there is no ap- peal from the Supreme Court in New York, without leave, even though the case involves also a question of the right to use a private way. McMillen v. Cronin, 57 How. Pr. (N. Y. Ct. of Appeals) 53. See also Kurtz v. Hoff- man, 65 Iowa 260; Cook v. Bondurant, 85 Va. 47; Greathouse v. Sapp, 26 W. Va. 87. 1. In California the decisions are conflicting. See, in support of re- covery below the appellate juris- 733 Appealable. AMOUNT IN CONTROVERSY. Appealable. b. COUNTERCLAIM FILED. When the defendant files a counterclaim in the trial court and then appeals from a judgment against him, he occupies substantially the position of a plaintiff appealing from an adverse judgment, and therefore the amount so claimed affirmatively by him becomes the appellate amount in controversy. 1 dictional amount, Maxfield v. John- son, 30 Cal. 545 ; Pennybecker v. McDougal, 48 Cal. 161; Solomon v. Reese, 34 Cal. 33; Bailey v. Sloan, 65 Cal. 387; Lord v. Goldberg, Si Cal. 596, 15 Am. St. Rep. 82; Dashiell v. Slingerland, 60 Cal. 653. But com- pare the able dissenting opinion of Morrison, C.J., in the latter case; and see, contra, Votan v. Reese, 20 Cal. 89; Zabriskie v. Torrey, 20 Cal. 173 ; Meeker v. Harris, 23 Cal. 286; Dumphy v. Guindon, 13 Cal. 28. In Louisiana it is the rule. Prieur it. Commercial Bank, 7 La. 509; State v. Hackett, 5 La. Ann. 91 ; McKee v. Ellis, 2 La. Ann. 163; State v. Wiltz, 11 La. Ann. 439; Holland v. Duchamp, 12 La. Ann. 784; State v. Lagarde, 21 La. Ann. 18; Hendricks v. Wood, 33 La. Ann. 1051; Smith v. Merchants' Mut. Ins. Co., 33 La. Ann. 1071; State v. Judges, 34 La. Ann. 1046; Fran- cisco v. Gauthier, 35 La. Ann. 393; Munday v. Lyons, 35 La. Ann. 990; Zuberbier v. Morse, 36 La. Ann. 970; State v. Judges, 37 La. Ann. 372 ; Johnson v. Cavanac, 40 La. Ann. 773; Flower v. Prejean, 42 La. Ann. 897. In Iowa. In appeals from justices of the peace, where by statute "any person aggrieved by the final judg- ment * * * may appeal," it was held that if the plaintiff could appeal be- cause his claim was in an amount suf- ficient, although his recovery was be- low the appealable amount, the de- fendant was entitled to the same privilege, the plaintiff's claim availing for him. Lundak v. Chicago, etc., R. Co., 65 Iowa 473; Hays v. Chicago, etc., R. Co., 64 Iowa 593; Perry v. Conger, 65 Iowa 588; Curran v. Excel- sior Coal Co., 63 Iowa 94; Nichols v. Wood, 66 Iowa 225; Sterner v. Wilson, 68 Iowa 714. In Missouri a similar rule prevails. Ellis v. Harrison, 104 Mo. 270. See semble, contra, Bateman v. Sisson, 70 Iowa 518. In Illinois, under the Rev. Sis. of 1891, in actions arising ex delicto and tried on the merits, the jurisdiction of the Supreme Court depends on the amount recovered, no matter who ap- peals. Fitzpatrick v. Chicago, etc., R. Co., 139 111. 248; Baber v. Pitts- burg, etc., R. Co., 93 111. 342; Brad- shaw v. Standard Oil Co., 114 111. 172. The right of a Court of Chancery to give relief against the decisions of courts of record or justices of the peace depends upon the amount of the judgment recovered therein. Ballen- tine -v. Beall, 4 111. 203. Compare Bailey v. Green, 8 Wend. (N. Y.) 339. In Massachusetts. In suits on simple contracts, appeals in which are, by statute, limited to cases wherein 'plaintiff claims more than 850," it is invariably the amount claimed which tests appellate jurisdiction. Stone v. Kelly, 8 Mass. 98. See also, arising under Mass, statutes of 1820, Chamberlain v. Cochran, 8 Pick. (Mass.) 522; Hemmenway v. Hickes, 4 Pick. (Mass.) 499. In Connecticut a similar rule obtains. Pitkin v. Flowers, 2 Root (Conn.) 42; Newton v. Danbury, 3 Conn. 553. In Washington, by statute, appellate jurisdiction being made to depend, in certain actions, on "the original" amount in controversy, this language is construed to include all cases, no matter who appeals. Bleecker v. Sat- sop R. Co., 3 Wash. 77. In Wisconsin. By the organic law of Wisconsin while still a Territory, in force in 1847, the amount recovered determined the right of appeal vel non to the U. S. Supreme Court. Oakley v. Hibbard, 2 Pin. (Wis.) 21, 52 Am. Dec. 139. 1. Illinois. Capen i>. De Steiger Glass Co., 105 111. 185. Iowa. Mash v. Beckman, 86 Iowa 249; Sterner v. Wilson, 68 Iowa 714. Indiana. Lake Shore, etc., R. Co. v. Van Auken, i Ind. App. 492. Louisiana. Lamorere v. Avery, 32 La. Ann. 1008; Davenport v. Knox, 35 La. Ann. 486; New Orleans, etc., R. Co. v. Barton, 43 La. Ann. 171; Young v. Wilson, 34 La. Ann. 385; Miller v. Gidiere, 36 La. Ann. 201; Colomb v. McQuaid, 36 La. Ann. 370; Citizens' Bank v. Webre, 44 La. Ann. 734 Statutory Amount. AMOUNT IN CONTROVERSY. Local Provisions. 3. In Intermediate Appeals. Where the jurisdiction of a justice of the peace or a court of similar standing has failed for want of a sufficient amount in controversy, and an appeal is taken to some intermediate appellate court, the latter, according to the current weight of authority, is without power to review the case, its jurisdiction being solely dependent upon that of the former. 1 See " JURISDICTION." XIII. STATUTORY AMOUNT LOCAL PROVISIONS. From the very nature of the case the amount in controversy as affecting the ju- risdiction of courts, both original and appellate, is largely depend- ent upon constitutional and statutory enactment of a purely local and limited character, and differing to a greater or less degree in. the various states. So far as these provisions have been con- strued or applied in the adjudicated cases they are collated in the notes. 2 no part of the amount in controversy. Kurtz v. Hoffman, 65 Iowa 260; Campbell v. Lewis, 83 Iowa 583; Bled- soe v. Gulf, etc.,R. Co. (Tex. Civ. App., % 1894), 25 S. W. Rep. 314; Blanchard v. Kenison, 25 La. Ann. 385; Wiley v. Brigham, 81 N. Y. 13; Blake v. Krom, 128 N. Y. 64. Claiming a Reduction of Judgment is not equivalent to the filing of a counter- claim by defendant, so as to entitle him to an appeal as for affirmative relief sought. Lamar v. Micou, 104 U. S. 465- In Virginia disallowed counterclaims cannot be included in the amount in controversy when the defendant ap- peals from a judgment for the plaintiff. Lewis v. Long, 3 Munf. (Va.) 136; Umbarger v. Watts, 25 Gratt. (Va.) 167; Harman v. Lynchburg, 33 Gratt. (Va.) 37; Hawkins v. Gresham, 85 Va. 34; Kendrick v. Spotts (Va., 1893), 17 S. E. Rep. 853. Alternative and General Statements of the law upon the question of the amount in controversy on appeal are to be found in the following cases : Wilson v. Daniel (1798), 3 Dall. (U.S.) 401; Lee v. Watson, i Wall. (U. S.) 337; Knapp v. Banks (1844), 2 How. (U. S.) 73; Merrill v. Petty, 16 Wall. (U. S.)338; Gage v. Crockett, 27 Gratt. (Va.) 735; Harman v. Lynchburg, 33 Gratt. (Va.) 37; Reynolds v. Sneed, I Ark. 199; Skillman v. Lachman, 23 Cal. 198, 83 Am. Dec. 96; Poland v. Carrigan, 20 Cal. 174. 2. Alabama Circuit Courts. Origi- nal jurisdiction in civil cases limited to cases where sum involved exceed $50, by constitution. Huggins v. 334; McKnight's Succession, 44 La. Ann. 399. Missouri. Forster Vinegar Co. v. Guggemos, 24 Mo. App. 444. New York. Dudley v. Brinkerhoff (Supreme Ct.), 2 N.Y. Supp. 321; Reed v. Trowbridge, 106 N. Y. 657. United States. Dushane v. Bene- dict, 120 U. S. 630; Ryan v. Bindley, I Wall. (U. S.) 66; Sire v. Ellithorpe Air Brake Co., 137 U. S. 579; Block v. Darling, 140 U. S. 234; Buckstaff v. Russell (1894), 151 U. S. 626. Vermont. Sherwin v. Colburn, 25 Vt. 613; Church v. French, 54 Vt. 420. See also Myers v. Myers, 22 Mo. App. 94; Mackay v. Banister, 53 L. T. N. S. 567. Contra, Fowler v. Stocking (1813), 5 Day (Conn.) 539. 1. The Difference between the Counter- claim and the Amount Allowed thereon constituted the amount in controversy, on an appeal by the defendant, when the said counterclaim was sufficient to confer jurisdiction, but the amount recovered thereon was insufficient. Carne v. Russ (1894), 152 U. S. 250; Peyton v. Robertson, 9 Wheat. (U. S.) 527- The difference between the amount allowed plaintiffs and the amount al- lowed the defendants on their counter- claim was held to be the amount in controversy on the defendants' appeal. Purcell v. Booth, 6 Dakota 17; State i', Lewis (Mo. i, 888), 8 S. W. Rep. 770; Ryan v. Bindley, i Wall. (U. S.) 66. See also Thompson v. French, 57 Iowa 559- The Counterclaim Must be Provable. A counterclaim which presents no case and is unsupported by evidence forms 735 Statutory Amount. AMOUNT IN CONTROVERSY. Local Provisions.. The notes to this section, however, do not give, and do not pro- fess to give, a reference to all the multitudinous and constantly Ball, 19 Ala. 587; Camp -v. Marion County, 91 Ala. 240. Affidavit is req- uisite alleging bona fides of plaintiff's claim in all cases where a greater sum than is due is demanded. Cavender v, Funderburg, 9 Port. (Ala.) 460. So also where a sum below the court's ju- risdiction is recovered in such actions, unless recovery is reduced by a set-off successfully interposed. McClure v. Lay, 30 Ala. 208; Camp v. Marion County, 91 Ala. 240. Chancery Courts have jurisdiction in claims of a purely equitable nature, where the sum demanded exceeds $20 and is less than $50. Hall v. Canute, 22 Ala. 650. Justices of the Peace. By statute their maximum jurisdiction in actions ex contractu not sounding in damages was $50. Cavender v. Fundebourg (1839), 9 Port. (Ala.) 460; Williams v. Hinton (1841), I Ala. 297. In other civil cases 50 was also the maximum limit. Crabtree v. Cliatt (1853), 22 Ala. 181; Carter v. Alford, 64 Ala. 236; Brown v. Alabama, etc., R. Co. (1880), 87 Ala. 370. The constitution of 1865 increased their jurisdiction in contract cases to $100, also in attachment. Pearce v. Pope, 42 Ala. 319; Solomon v. Ross, 49 Ala. 198. But jurisdiction in other civil cases is not increased thereby. Taylor v. Woods, 52 Ala. 474. By sec. 3378 of Code of 1886 they have original jurisdiction of actions of unlawful detainer up to $100, the constitutional limit of civil jurisdiction in the year 1890. Sykes v. Schwartz (Ala., 1890), 8 So. Rep. 71. Montgomery City Court is given by the constitution concurrent jurisdiction with the Circuit Court and justices of the peace where the amount involved is a sum between $50 and $100. Carew Lillienthall, 50 Ala. 44. under, by constitution. Crabtree v. Moore, 7 Ark. 74; Howell v. Milligan, 13 Ark. 40; Chatten v. Heffley, 21 Ark. 313; Dicus v. Bright, 23 Ark. no; Sherrill v. Wilson, 29 Ark. 384. By Ark. new constitution, art. 7, sec. 3, jurisdiction in contract extended to a maximum limit of $200 and a concur- rent jurisdiction with the Circuit Courts where the amount claimed ex- ceeds 100 and does not exceed $500. Rogers v. Glascock, 25 Ark. 24; Sherrill v. Wilson, 29 Ark. 384. In criminal cases they have concurrent jurisdiction with the Circuit Courts when fine does not exceed $100, but exclusive of such courts and concurrent with police and city courts in cases involving fines not exceeding $10. State v. Smith, 26 Ark. 149. By constitution, as in force in 1881, wherever the sum claimed oa an open account is less than $300, it is within the jurisdiction of a justice of the peace. Hibbard v. Kirby, 38 Ark. 102. So also in cases for the recovery of personal property whose value does not exceed $300, and in such cases where damages do not exceed $100. Stanley v. Bracht, 42 Ark. 210. By constitution, art. 7, sec. 40, in actions for damages the maximum limit of justices' jurisdiction is to claims of $100. Little Rock, etc., R. Co. v. Manees, 44 Ark. 100. Circuit Court. Appellate jurisdic- tion in appeals thereto from justices of the peace only attaches when the sum in controversy exceeds fioo, by organic law, p. 38. McCamy v. Smith, I Ark. 142. California. Supreme Court has con- current original jurisdiction, by the constitution, of all cases in which the amount demanded exceeds $200, with the district, county, probate courts, and court of sessions. Zander v. Coe, Arkansas County Courts of Common 5 Cal. 230. Same court had appellate Pleas. Original jurisdiction is limited to $500 and under, exclusive of inter- est. Street v. Stuart ( 1881), 38 Ark. 159. Circuit and county courts have as a minimum limit of their original jurisdiction $100. Huddleston v. Spear, 8 Ark. 406; Crabtree v. Moore, 7 Ark. 74; Blackwell v. State, 3 Ark. 320. Justices of the Peace. Original juris- diction in all civil cases in contract except covenant limited .o ,ioo and jurisdiction where matter in dispute exceeded $200. Adams v. Town (1853), 3 Cal. 247: Conant v. Conant (1858), 10 Cal. 249, 70 Am. Dec. 717; Bolton v. Landers (1864), 27 Cal. 106. By a sub- sequent constitutional provision its minimum limit in appeals was in- creased to $300. Hopkins v. Cheese- man (1865), 28 Cal. 180; People v. Perry (Cal., 1889), 21 Pac. Rep. 423; Bienenfeld v. Fresno Milling Co. (1890), 82 Cal. 425. But the question 736 Statutory Amount. AMO UNT IN CONTRO VERS Y. Local Provisions. changing statutes in all the various jurisdictions which affect the jurisdictional amount of local courts. Nothing short of is only one of costs; the jurisdiction extends to a demand for less than $300. Oullahan v. Morrissey (1887), 73 Cal. 297. And also in cases involving title to real estate. Doherty v. Thayer, 31 Cal. 140. District Courts were without original jurisdiction in cases involving less than $200, exclusive of interest. Arnold v. Van Brunt (1854), 4 Cal. 89; Brock v. Bruce, 5 Cal. 279; Page v. Ellis (1858), 9 Cal. 248. Subsequently the mini- mum limit of jurisdiction was fixed at $300. People v. Mier, 24 Cal. 61; Bell v. Crippen, 28 Cal. 327; Brown v. Rice, 52 Cal. 489; Derby v. Stevens (1883), 64 Cal. 287. Justices of the Peace are limited to a maximum jurisdiction of $100. Small v. Gwinn (1856), 6 Cal. 447; Van Etten v. Jilson, 6 Cal. TO; Freeman v. Pow- ers (1857), 7 Cal. 104; Ballerino v. Bigelovv (1891), 90 Cal. 500. "A sec- ond alcalde" is limited under the Mexican law in California to demands not exceeding $100. Norrell v. Gray, I Cal. 133. Colorado Supreme Court. Is limited in its appellate jurisdiction to cases in which the judgment recovered below, exclusive of costs, amounts to $100. Meyer v. Brophy (1890), 15 Colo. 572. Sons of America Bldg., etc., Assoc. v. Denver, 15 Colo. 592; Crane v. Farmer (1890), 14 Colo. 294; McClaskey v. Lake View Min. Co. (1892), 18 Colo. 65- Court of Appeals. The act of 1887 makes the same limitation applicable to the Court of Appeals as the suc- cessor of the Supreme Court. Pitkin County v. Aspen Min., etc., Co. (1891), I Colo. App. 125; Stevenson v. Clarke (1893), 2 Colo. App. 108. Dakota. District Courts which by the organic law have original jurisdic- tion in chancery and common law are not impliedly limited in the amount thereof to $50 because the law only allows a plaintiff costs when his re- covery equals that sum. St. Paul, etc., Ins. Co. v. Coleman, 6 Dakota 458. Connecticut. Superior Courts prior to 1852 had appellate jurisdiction in appeals from a county court where the matter in dispute exceeded $70. Huntley v. Davis (1815), I Conn. 391. Compare Houghton v. Havens (1826), a com- 6 Conn. 305. The act of 1852, by giv- ing county courts original jurisdiction in cases wherein demand did not ex- ceed $200, absolutely repealed the former appellate jurisdiction of supe- rior courts. Brown v. Payne, 22 Conn. 565; Imlay v. Judges, 23 Conn. 445. Equity suits, where matter in demand exceeds $335, may be entertained by superior courts. Where it is less than that sum the jurisdiction belongs to the county courts. Wheat v. Griffin (1810), 4 Day (Conn.) 419. Courts of Common Pleas, by general statutes, have jurisdiction in suits in equity where demand does not exceed 500. Of sums in excess of this the su- perior courts have cognizance. Stone v, Platt (1874), 41 Conn. 285; Boyle v. Rice, 41 Conn. 418; Blakeslee v. Mur- phy (1876), 44 Conn. 188. Florida Supreme Court. By act 1845 has appellate jurisdiction only where the amount in controversy is in excess of $50. Curry v. Marvin (1849), 2 Fla. 411; Anderson v. Brown (1855), 6 Fla. 299. Justices of the Peace have exclusive jurisdiction in suits to collect debts not exceeeding$5o by act of 1842. Me Millan v. Savage (1856), 6 Fla. 748. They have jurisdiction in larceny cases where property stolen does not exceed $20. McLean v. State (1887), 23 Fla. 281. Georgia. Superior Courts, by the Constitution of 1868, had concurrent original jurisdiction with justices of the peace in all civil cases where the amount of debt or claim was less than $100. McDonald v. Feagin, 43 Ga. 360. By same constitution the appel- late jurisdiction of said courts extends to all claim cases wherein the amount ceeds $50. Burts v. Farrar, 50 Ga. 601. District Courts, by the act of 1870, sec. 12, have cognizance of claims in debt and contract not exceeding $100. Forbes v. Owens, 45 Ga. 132. Justices of the Peace, by the consti- tution, may entertain civil cases aris- ing ex contractu only where the prin- cipal sum, exclusive of interest, costs, and other charges, does not exceed $100. Baxter v. Bates (1882), 69 Ga. 587; Johnson v. Stephens, 69 Ga. 756; Beach v. Atkinson, 87 Ga. 288. The jurisdiction of justices' courts in the i Encyc. PI. & Pr. 47. 737 Statutory Amount. A MO UNT IN CONTRO VERS Y. Local Provisions. plete transcript of those statutes would accomplish this result, for, as can readily be seen, the cases adjudicated construe only a city of Macon was enlarged by the act of 1852 from a $30 to a $50 limit. Freeman v. Carhart (1855), 17 Ga. 348. Illinois Supreme Courts. Appellate jurisdiction from appellate court in cases of tort where damages are capable of direct proof is limited to where those damages exceed $1000; but where they are not soascertainable it is sufficient, whether action be ex delicto or ex con- tractu, if they amount to $1000. Han- kins v. Chicago, etc., R. Co. (1881), 100 111. 466; Hutchinson v. Howe, 100 111. II ; Brant v. Gallup (1885), n.i 111. 487, 53 Am. Rep. 638; Ives v. Hulce(i88s), 17 111. App. 38; Moore v<. Sweeney (1889), 128 111. 204; Scharf v. People (1890), 134 111. 240, overruling Raw- lings v. People, 102 111. 475; Common v. People (1891), 137 111. 601; Umlauf v. Umlauf, 103 III. 651; Seelye v. See- lye (1892), 143 111. 264. By a statute in force in 1832 there could be an ap- peal from a Circuit Court to the Su- preme Court, where a judgment in the former, exclusive of costs, amounted to $20, but there could be a writ of error although judgment was less than that sum. Bowers v. Green (1832), 2 111. 42, overruling Clark v. Ross, i 111. 334- Justices of the Peace. By statute of 1836 their maximum jurisdiction of actions by or against administrators is $20. Leigh v. Mason (1836), 2 111. 249; Williams v. Blankenship (1850), 12 111. 122. By Justices Act, sec. 17, this was changed so that in suits in which administrators were plaintiffs the jurisdiction was enlarged to $100. Miller v. McCray (1865), 37 111. 428. In attachment their jurisdiction was for- merly limited to $30 and less, and then increased to $50. Hull v. Blaisdell (1837), 2 111. 332. In trespass d. b. a. there was also a limit of $30. Hyatt a. Harmon (1844), 6 111. 379. In ac- tions for debts due upon verbal con- tracts they had by statute in force in 1841 a maximum limit of $100. Dow- ling v. Stewart, 4 111. 193. So also in a suit upon the judgment of another justice the highest limit was $100. Chicago, etc., R. Co. v. Whipple (1859), 22 111. 337. The proposed bill of 1871 to increase justices' jurisdiction in civil cases to $200 failed to become a law. People v. De Wolf (1871), 62 111. 253. Compare Hensoldt v. Petersburg (1872), 63 111. 157. In Peoria county, by Rev. Stats, ch. 49, 17, the ju- risdictions of justices and police mag- istrates over all complaints, suits, and prosecutions in said statute mentioned extends to where the claim does not exceed $300; and a similar limit was fixed in all cases of debts, penalties, and demands in which debt, or as- sumpsit and trover, or trespass to per- sonal property would lie. Steamboat Delta v. Walker (1860), 24 111. 233; Campbell v. Conover, 26 111. 64. The constitution of 1870 abolished all local jurisdictional limits of amount in the jurisdiction of justices, and rendered it uniform throughout the state, the maximum limit by the act of 1871 being fixed at $100. Markham v. Heffner (1873), 67 111. 101; Johnson v. Logan, 68 111. 313; Phillips v. Quick (1872), 63 111. 445; Taylor v. Smith (1872), 64 111. 445. In garnishment on judgment recovered before him a jus- tice of the peace has jurisdiction with- out regard to the statutory limit. Nesbitt v. Dickover (1886), 22 111. App. 140. By a statute of 1890 the maxi- mum limit of jurisdiction in replevin is fixed to where property is not worth over $200. Vogel v. People, 37 111. App. 388. County Courts. Have concurrent jurisdiction with Circuit Courts in all cases where amount does not exceed $500. Lachman v. Deisch (1873), 71 111. 59- Indiana Supreme Court. Has appel- late jurisdiction only where amount involved, exclusive of interest and costs, exceeds $50, by Practice Act of March, 1877. Louisville, etc., R. Co. v. Jackson, 64 Ind. 398; Cowley v. Rushville, 60 Ind. 327; Halleck v. Weller, 72 Ind. 342. See also Hall v. Durham, 113 Ind. 327. Appellate Court. Has exclusive ju- risdiction of appeals fom circuit, supe- rior, and criminal courts in cases orig- inating before a justice where sum involved exceeds $50, and in cases for the recovery of money only wherein amount does not exceed $1000. Baker v. Groves (1890), 126 Ind. 593; Parker v. Indianapolis Nat. Bank, 126 Ind. 595; Harris v. Howe (1891), 129 Ind. 72; Wysor v. Johnson, i Ind. App. 419; Hallett v. Hallett (Ind. App., 1892), 30 N. E. Rep. 534; Durham v. 738 Statutory Amount. AMOUNT IN CONTROVERSY. Local Provisions. portion of the statutory enactments, and these adjudicated cases fulfil the whole purpose of this article. State, 133 Ind. 422. By acts of 1893, p. 29, sec. i, the appellate jurisdiction was extended in money actions to a maximum limit of $3500. Bible v. Voris (Ind. App., 1893), 34 N. E. Rep. 128; Miller v. Hart, 6 Ind. App. 557. Court of Common Pleas. Had a stat- utory jurisdiction of less than 1000. Fleece v. Indiana, etc., R. Co. (1856), 8 Ind. 460; Vawter v. Grant (1857), 10 Ind. 7; May v. Crawford (1859), 14 Ind. 5; Lambdin v. Miller (1860), 14 Ind. 514. By a subsequent statute, act of 1859, this jurisdiction was en- larged to sums of $1000 and over, ex- cept in special cases. Murdock v. Wheelock, 13 Ind. 472; Stevenson v. Gould (1861), 17 Ind. 406; Schoonover v. Bennett (1862), 18 Ind. 223. Circuit Courts. The minimum limit of their jurisdiction was $50. Proctor v. Bailey (1841), 5 Blackf. (Ind.) 495. Their minimum limit was afterwards by statute $1000. State v. Turner (1858), 10 Ind. 411; Marsh v. Sher- man (1859), 12 Ind. 358. Justices of the Peace. By statute of 1823 their general jurisdictional maxi- mum limit was $50. M'Fadin v. Gill (1824), I Blackf. (Ind.) 309; Parkins v. Smith (1837), 4 Blackf. (Ind.) 299; Middleton v. Harris, 6 Blackf. (Ind.) 397; Forshaz'. Watkins,4 Blackf. (Ind.) 520; Markin v. Jornigan (1852), 3 Ind. 548; White Water Valley Canal Co. v. Dow, i Ind. 141; Falkner v. lams, 5 Ind. 200; Wilcox v. Hogan, 5 Ind. 546. By statutes of 1827, p. 30, this jurisdic- tion in actions of debt or assumpsit was extended to cases in which the claim was for an amount not exceeding 100. Cowgillz/. Wooden, 2 Blackf. (Ind.) 332; Evans v. Shoemaker, 2 Blackf. (Ind.) 237; State v. Westbrook, 7 Blackf. (Ind.) 138. By Rev. Stats, of 1852 the maximum limit was fixed at claims of $100, inclusive of interest, both in ac- tions arising ex contractu and exdelicto. Gregg v. Wooden (1856), 7 Ind. 499; Rodman v. Kelly (1859), 13 Ind. 377. By act of 1861 jurisdiction in actions of tort extended where claim amounted to $200, concurrently with courts of common pleas. Leathers v. Hogan, 17 Ind. 242. See also Harrell v. Ham- mond, 25 Ind. 104; Caffreyv. Dudgeon, 38 Ind. 512, 10 Am. Rep. 126; Deam v, Dawson (1878), 62 Ind. 22. By act of 1876, 10, and of 1881, 1433, jurisdiction is given both in contract and tort to sums up to 200. State v. Forry (1878), 64 Ind. 260; Second Nat. Bank v. Hutton (1881), 81 Ind. 101; Fawkner v. Baden (1883), 89 Ind. 587. By the same acts in judgments con- fessed, the jurisdictional maximum limit is fixed at $300. Galloway v. Byram, 95 Ind. 423. In actions of as- saults, batteries, affrays, and other breaches of the peace they may im- pose a fine not exceeding $20, by Rev. Stats. 1830 and 1843. Henry v. Hamil- ton, 7 Blackf. (Ind.) 506. Idaho Probate Court. By the act of Congress, Dec. 13, 1870, has concurrent jurisdiction with the District Court where the amount in controversy, ex- clusive of interest, does not exceed $500. Greathouse v. Heed, i Idaho 494. Iowa Supreme Court. Has a mini- mum limit in its appellate jurisdiction of $100, with certain specified statu- tory exceptions. Wilson v. Iowa County (1879), 52 Iowa 339; Hakes v. Dott (1880), 54 Iowa 17; Mohme v. Liv- ingston, 54 Iowa 458; Davis v. Up- right, 54 Iowa 752; Andrews v. Burdick (1883), 62 Iowa 714; Kurtz v. Hoffman (1884), 65 Iowa 260; Hays v. Chicago, etc., R. Co. 64 Iowa 593; McBurney v. Graves (1885), 66 Iowa 314; Ardery v. Chicago, etc., R. Co.. 65 Iowa 723; Bradenberger v. Rigler (1886), 68 Iowa 300; Cooper v. Wilson (1887), 71 Iowa 204; Ellithorpe v. Reidesil, 71 Iowa 315; Riddle v, Fletcher, 72 Iowa 454; Chilton v. Chi- cago, etc., R. Co. ,72 Iowa 689; Hutch- inson v. Hutchinson, 73 Iowa 763; Harrington v. Pierce, 38 Iowa 260; District Tp. v. Independent Dist., 72 Iowa 687. (N.B. That in this case the court says, in construing the statute conferring the appellate juris- diction, that the same is limited to $100 . Reber (1868), 4 Kan. 270. So also in actions of trespass to real estate where the damages demanded do not exceed that sum. Missouri Pac. R. Co. v. Atchison (1890), 43 Kan. 529. In civil matters for money demands only, the maximum limit is $300. Ball v. Big- gam (1890), 43 Kan. 327; Missouri Pac. R. Co. -v. Atchison, 43 Kan. 529. Kentucky Court of Appeals. By acts 1824, sec. 16, its minimum jurisdic- tional limit was $20 exclusive of costs. Clarke v. Chiles (1825), 2 T. B. Mon. (Ky.) 105. This was subsequently ex- tended to a minimum of $100. Nichols v. Hansel (1830), 3 J. J. Marsh. (Ky.) 442; Kendall v. Spradling (1854), 15 B. Mon. (Ky.) 33. By Gen. Statutes, chap. 28, art. 22, sec. 2, in suits for the re- covery of money or personal property the value thereof must amount to $50. Bracyt/.Bracy (1876), 12 Bush (Ky.)i53- Superior Court has appellatejurisdic- tion to enforce land liens where de- mand is for less than $3000. Stultzz'. Farthing, 91 Ky. 372. Circuit Courts have a general mini- mum of original jurisdiction, by the constitution, of 850. Circtrit Courts Original Jurisdic- tion. By statutes their minimum ju- risdiction was ^5, and between that amount and $50 they exercised con- curent jurisdiction with justices of the peace. Sayre v. Lewis (1844), 5 B. Mon. (Ky.) 90. See also Sams -v. Stock- ton(iS53), 14 B. Mon. (Ky.) 187; Harris v. Smith (1828), 7 T. B. Mon. (Ky.) 310. Subsequently it was held, in accord- ance with statute, that they were without jurisdiction where the amount in controversy, exclusive of interest and costs, did not exceed $50. Gris- wold v. Peckenpaugh (1866), i Bush (Ky.) 220. Equity Jurisdiction. The circuit judge sitting in chancery could only enjoin judgments for $ and over. Cummins v. Carter (1827), 5 T. B. Mon. (Ky.) 493. The judgment of a quarterly court amounting to 50 may be enforced in equity, as per Rev. Stats., chap. 40, sec. 10. Hopkins v. Stout, 6 Bush (Ky.) 375; Craig v. Gar- nett, 9 Bush (Ky.) 97. Circuit Courts Appellate Jurisdic- tion in appeals from a justice de- pends upon whether the sum claimed before the latter exceeds ^5. Williams v. Wilson (1837), 5 Dana (Ky.) 596; Partlow v. Lawson, 2 B. Mon. (Ky.) 46. If less than ^5, the appeal is to the County Court. Bassett v. Oldham (1838), 7 Dana(Ky.) 168. County Courtsa.ro., by a construction of statutes in force in 1840, without ju- risdiction of attachment for rents ex- ceeding .5. Poer v. Peebles, i B. Mon. (Ky.) i. It was held doubt- ful if the Virginia act of 1748, pro- "hibiting the jurisdiction of county courts from an action for ,\Q for deceitful gaming, was in force in the year 1840. Parks v. Munford, 9 Dana (Ky.) 319- The General Court, by act of 1802, has a jurisdiction where matter in dis- pute exceeds $20 in all controversies between citizens and non-residents. Turner v. O'Bannon (1829), 2 J. J. Marsh. (Ky.)i86. Justices of the Peace. By statute in force in 1809 their maximum jurisdic- tional limit in actions ex coniractu was 740 Statutory Amount. A MO UNT IN CONTRO VERS Y. Local Provisions. ,5, but in actions ex delicto and tort, except in the action of trover, their min- imum limit was $. Singleton v. Madison, i Bibb (Ky.) 342. See also Evans v. Sanders (1850), 10 B. Mon. (Ky.) 291. By statute subsequently their maximum jurisdiction in ac- tions ex contracts, was extended to $50. Coonrod v. Doan, 3 J. J. Marsh. (Ky.) 510; Coleman v. Cason, 3 J. J. Marsh. (Ky.) 234; Latham v. Ford, i A. K. Marsh. (Ky.)4ii; Thomas v. Thomas (1826), 2 A. K. Marsh. (Ky.) 430; Owens v. Starr (1822), 2 Litt. (Ky.) 230; Hawkins v. Com. (1824), i T. B. Mon. (Ky.) 144; Florrance v. Goodin (1844), 5 B. Mon. (Ky.) in; Howke v. Buford (1847), 8 B. Mon. (Ky) 38; Smith v. Terrill (1853), *4 B- Mon. (Ky.) 207; Fleming v. Limebaugh (1859), 2 Mete. (Ky.) 265. The same limit also appertains to actions for the recovery of money and personal prop-, erty. Fidler v. Hall (1859), 2 Mete. (Ky.)46i; Burnes v. Cade (1874), 10 Bush (Ky.) 251. By statute in force in 1869, in offenses for erecting and continuing a fence across a public road, a justice has jurisdiction if the whole fine does not exceed $10; if it is more than this, the Circuit Court takes cognizance. Com. v. Mills, 6 Bush (Ky.)2 9 6. Louisiana Supreme Court. Former- ly minimum limit on appeal was $300, save in certain excepted cases. Jar- vis's Succession (1854), 9 La. Ann. 370; Police Jury v. Villaviabo (1857), 12 La. Ann. 788; State v. Third Justice (1857), 12 La. Ann. 789; Fletcher v. Henley (1858), 13 La. Ann. 150; State v. Fabre, 13 La. Ann. 279; State v. Judge (1862), 16 La. Ann. 416. Subsequently this minimum limit was increased to $500 by the constitution of 1868. Myers v. Mitchell (1868), 20 La. Ann. 533; Gush- ing v. Hickle, 20 La. Ann. 567; Rooney v. Brown (1869), 21 La. Ann. 51; Ma- lone v. Casey, 25 La. Ann. 466; Ed- wards v. Edwards, 29 La. Ann. 597; Newan v. Carney, 30 La. Ann., Part II. 1201; Lamarque v. New Orleans (1880), 32 La. Ann. 276; Fendler v. Bates (1882), 34 La. Ann. 595. A further increase was made to a minimum limit of $1000 in certain cases. Renshaw v. Stafford (1882), 34 La. Ann. 1138; State v. Judges (1883), 35 La. Ann. 736. And this was still further increased to the present juris- dictional minimum limit of $2000. Sweenev v. Seller, 37 La. Ann. 585; Denis v. Houston, 38 La Ann. 39; State v. New Orleans (1887), 39 La. Ann. 342; Conery v. New Orleans Water Works Co., 39 La. Ann. 770; Bush v. Berard, 39 La. Ann. 899; Pochelu v. Catonnet (1888), 40 La. Ann. 327; Bedford's Succession, 38 La. Ann: 244; Young v. Duncan, 39 La. Ann. 86; Emancipation of Po- chelu (1889), 41 La. Ann. 331; Ellis v. Silverstein, 26 La. Ann. 47; Barry Gamier, 31 La. Ann. 831; Mayer v. Stahr, 35 La. Ann. 57; Forstall -v. Larche, 39 La. Ann. 286; Barnett v, Gill (1891), 43 La. Ann. 1041. Court of Appeals has a minimum limit of $200 and a maximum limit of $1000. State v. Mayo (1881), 33 La. Ann. 1070; State v. Judges, 33 La. Ann. 1096; State v. Judges (1883), 35 La. Ann. 736. See also Louisiana Ice Co. v. State Nat. Bank, 32 La. Ann. 597. District Courts. Minimum jurisdic- tional limit by the constitution is $500. Choppin v. Forstall, 28 La. Ann. 303; State v. De Vargas, 28 La. Ann. 342; Gay v. New Orleans Pac. R. Co., 31 La. Ann. 274. Paris/i Courts. Maximum jurisdic- tional limit is 8500 by the constitu- tion. Swan v. Gayle, 21 La. Ann. 478; Bartlett's Succession, 21 La. Ann. 531; Mayer v. Dayries, 24 La. Ann. 206; Fellers v. Brown, 24 La. Ann. 300; In re Brown, 28 La. Ann. 716; Flournoy v. Flournoy, 29 La. Ann. 737; Fields v. Gague, 31 La. Ann. 182. City Courts in the Parish of New Orleans are by the constitution lim- ited to cases in which the amount in- volved is $100. State v. Judge, 32 La. Ann. 1222; State v. Judge, 33 La. Ann. 15; Fredricks v. Skinner, 33 La. Ann. 146; State v. Voorhies, 34 La. Ann. 99; State v. Voorhies, 34 La. Ann. 1142; State v. Judge, 37 La. Ann. 583. Justices of the Peace have a maxi- mum jurisdictional limit of $100. State v. Third Justice (1860), 15 La. Ann. 660; Clerc v. Boudreaux (1886), 38 La. Ann. 732; State v. Judge (1889), 41 La. Ann. 403. Maine. Court of Appeals may en- tertain appeals, in accordance with statutes and their construction, in per- sonal actions where sum demanded exceeds $200. Wherever the amount claimed falls below this sum, the only method of bringing the matter before this court is by bill of exceptions. Kimball v. Moody (1841), 18 Me. 359. 741 Statutory Amount. A MO UNT IN CONTRO VERS Y. Local Provisions. The Supreme Judicial Court has original as well as concurrent juris- diction with justices of the peace of actions of trespass q. c. f. although damages demanded are less than 20. Burnham v. Ross (1860), 47 Me. 456. District Court. Both before and after the passage of the act of August 10, 1846, this court had original juris- diction of all civil suits in which the amount claimed was between $20 and $100; and the act by which justices of Waldo County obtained original juris- diction in civil suits in which debt or demand did not exceed $5O,and concur- rent jurisdiction with District Courts in actions wherein the amount was be- tween $50 and $100, hnd no impairing effect upon the said general jurisdic- tion of the latter courts. Abbott v. Knowlton (1849), 31 Me. 77. Justices of the Peace, by act of 1829, ch. 443, were given a maximum juris- diction in replevin of 20; but this act also construed as giving them not an exclusive but a concurrent jurisdiction with Courts of Common Pleas in such actions within said limit. Ridlon v. Emery (1830), 6 Me. 261. Maryland. Circuit Courts in the counties have concurrent jurisdiction with justices of the peace where the amount claimed or the thing in action exceeds $50. Harris v. Dorsey, i Har. & J. (Md.) 416; Baltimore, etc., Turn- pike Co. v. Barnes, 6 Har. & J. (Md.) 57; Barger v. Collins, 7 Har. & J. (Md.) 220; Offutt v. Offutt, 2 Har. & J. (Md.) 178; Schindel v. Suman, 13 Md. 310; Deitrich v. Swartz, 41 Md. 196; Randle v. Sutton, 43 Md. 64. Justices of the Peace. Jurisdiction limited to cases both of contract and tort where debt or damages claimed do not exceed $100. O'Reilly v. Mur- dock, i Gill (Md.)32; Beall v. Black, i Gill (Md.) 203; Carter v. Tuck, 3 Gill (Md.) 248; Brumbaugh v. Schnebly, 2 Md. 325; Ott v. Dill, 7 Md. 251; Ab- bott v. Gatch, 13 Md. 336, 71 Am. Dec. 635; Bushey ^..Culler, 26 Md. 534; Herzberg v. Adams, 39 Md. 309; Dei- trich v. Swartz, 41 Md. 196; State v. Tabler, 41 Md. 236; Randle v. Sutton, 43 Md. 64; Rohr v. Anderson, 51 Md. 212; Reese v. Hawks, 63 Md. 130. Courts of Equity cannot " hear, try, determine, or give relief in any cause * * * wherein the original debt or damages does not amount to $20." Reynolds v. Howard, 3 Md. Ch. 331; Pentz v. Citizens' F.Ins.Co.,35 Md. 73. Baltimore City Courts. By the con- stitution of 1864 Superior Court of Baltimore City had jurisdiction when debt or damage claimed exceeded $1000. Reidel v. Turner, 28 Md. 362; Abbott v. Gatch, 13 Md. 314, 71 Am. Dec. 635. And the Court of Common Pleas when the claim exceeded $100 and did not exceed $1000, exclu- sive of interest. State v. Mace, 5 Md. 337; Blimline v. Cohen, 8 Md. 147; Abbott v. Gatch, 13 Md. 314, 71 Am. Dec. 635; Miller & Barroll, 14 Md. 173; Baltimore Cannel, etc., Coal Co. v. Stewart, 28 Md. 365. Constitution of 1867 gives both of these courts and the Baltimore City Court concurrent jurisdiction in all cases where the debt or damage claimed exceeds $100, below which sum justices of the peace take cog- nizance under general statutory law. See Rohr v. Anderson, 51 Md. 206. Appeals from Justices in Baltimore City. Such cases are triable in Balti- more City Court de nova, and a judg- ment beyond justices' jurisdiction can be rendered. Zitzer v. Jones, 48 Md. 115. Contra, Louisville, etc., R. Co. v. Breckenridge, 64 Ind. 113. County Courts had jurisdiction in cases where an executor or adminis- trator was defendant and in which debt or demand did not exceed $50. Hale v. Howe (1815), 4 Har. &. J. (Md.) 448. Massachusetts. Superior Court of Judicature of the Province of Massachu- setts between the years 1761 and 1772. No appeal would lie therefrom grant- ing a prohibition to the admiralty to the king in council unless the matter in controversy exceeded .300. Scol- lay v. Dunn (1763), Quincy (Mass.) 74. Supreme Judicial Court. Ordinary minimum limit of appellate jurisdic- tion is $100. Sibley v. Smith (1837), 19 Pick. (Mass.) 546. Contrast Hovey v. Crane, 10 Pick. (Mass.) 440. By con- struction of the statutes of 1838 and 1840, 8300 is the minimum jurisdic- tional limit in appeals from decisions of commissioners allowing or reject- ing creditors' claims against estates of deceased insolvent debtors. Sabine v. Strong (1843), 6 Met. (Mass.) 270. This court also has original jurisdic- tion of actions to foreclose mortgages in which the real amount sought to be recovered exceeds the value of $600. Hyde v. Greenough (1853), n Cush. (Mass.) 87. 742 Statutory Amount. A MO UNT IN CONTRO VERS Y. Local Provisions. Court of Common Pleas for the coun- ties, by statutes 1782, ch. n, had a minimum jurisdictional limit in civil actions of 40 shillings. Cleveland v. Welsh (1808), 4 Mass. 591; Briggs v. Nantucket Bank (1809), 5 Mass. 94. District and Police Courts may hear aud determine cases of tort where damages demanded are more than $20 and less than $300. Bossidy v. Bran- niff, 135 Mass. 290. Justices of the Peace, by stat. 1783 have a maximum limit of 4. Blood v. Kemp (1826), 4 Pick. (Mass.) 169; Car- roll v. Richardson (1812), 9 Mass. 329; Sumner v. Finegan (1818), 15. Mass. 280. See also Pitman v. Flint (1830), 10 Pick. (Mass.) 504. By act of 1852, chap. 314, this jurisdiction was en- larged to $100 except in actions of trespass to real estate, in which it re- mains at $20. Trees v. Rushworth (1857), 9 Gray (Mass.) 47; McQuade v . O'Neil (1860), 15 Gray (Mass.) 52, 77 Am. Dec. 350; Bossidy v. Branniff, 135 Mass. 290; Leonard v. Hannon, 105 .Mass. 113; Blake v. Darling, n6Mass. "300: Octoz/. Teahan, 133 Mass. 430. By statute 1858, chap. 45, sec 2, the maxi- mum limit in amount of justices' crim- inal jurisdiction is for offenses punish- able by a fine not exceeding $50, and this held not to oust the jurisdiction of the Court of Common Pleas in such cases. Com. v. Hudson (1858), n Gray (Mass.) 64. Boston Municipal Court has a maxi- mum limit in civil actions of $300. Cooper v. Skinner, 124 Mass. 183. Michigan. Circuit Court ' s minimum jurisdictional limit is $100. Raymond v. Hinkson (1886), ' 15 Mich. 113; Dewey v. Duyer, 39 Mich. 509. Justices of the Peace have a maximum jurisdiction in actions ex contractu, ac- cording to the state constitution, of $100. Raymond v. Hinkson (1866), 15 Mich. 113. In replevin as to plain- tiff who is successful in the suit a jus- tice has jurisdiction to render a judg- ment for any sum not exceeding $500. Henderson v. Desborough (1873), 28 Mich. 170; Chilson v. Jennison (1886), 60 Mich. 235. By Comp. Laws, sec. 5255, in suits on money bonds given to secure specific sums of money the maximum limit is $150. Gray v. Staf- ford (1884), 52 Mich. 497. Equity Court has no jurisdiction of suit only involving $50. Sanford v. Haines, 71 Mich. 116. Minnesota Justices of the Peace and District Courts. By statute the maxi- mum limit of the former and the mini- mum limit of the latter is $100. Cast- ner v. Chandler (1858), 2 Minn. 86. Mississippi Supreme Court. In all appeals from the Circuit Court in cases originally commenced before a justice of the peace this court has a minimum limit of 850, as provided by statute. New Orleans, etc., R. Co. v. Evans (1874), 49 Miss. 785; O'Leary v. Har- ris, 50 Miss. 13; Ward v. Scott, 57 Miss. 826; Clark v. Gresham (1890), 67 Miss. 203. Circuit Courts. The constitution limited their jurisdiction to sums in excess of 50. Loomis v. Commercial Bank (1840), 4 How. (Miss.) 660; Cra- poo v. Grand Gulf (1848), 9 Smed. & M. (Miss.) 205. Their equity juris- diction has a maximum limit, as provided in the constitution, of $500. Henderson v. Herrod (1852), 23 Miss. 434- Justices of the Peace were formerly limited to a maximum amount of $50 by the constitution. Loomis v. Com- mercial Bank (1841), 4 How. (Miss.) 660. Subsequently this limit was en- larged to $150 by the constitution of 1869. Randall v. Kline (1870), 44 Miss. 313; Mobile, etc., R. Co. v. State (1875), 51 Miss. 137; Jackson v. Whitfield, 51 Miss. 202; Bell v. West Point, 51 Miss. 262. By the consti- tution of 1890 this jurisdiction was still further enlarged to $200. Rich v. Calhoun (Miss., 1893), 12 So. Rep. 707. Missouri. Supreme Court has a ju- risdiction whose minimum limit is $2500. Golding v. Golding (iSSi), 74 Mo. 123; Corrigan v. Morris, 97 Mo. 174; Kerr v. Simmons (1884), n Mo. App. 595; State v. Slevin (1885), 16 Mo. App. 541. Court of Appeals has a maximum limit of $2500. Caruth v. Richeson (1888), 96 Mo. 186; Syenite Granite Co. v. Bobb (1888), 97 Mo. 46. Circuit Court. Ordinary minimum limit is $50. Smith v. Clark County, 54 Mo. 58; Fickle v. St. Louis, etc., R. Co., 54 Mo. 219; Williams v. Payne, 80 Mo. 409. But compare Cranston v. Union Trust Co., 75 Mo. 29; Works v. Strange, 25 Mo. App. 12. In actions ex contractu they have concurrent jurisdiction with justices of the peace in sums exceeding $50 and not exceeding $90. Murphy v. Campbell (1865), 36 Mo. no. 743 Statutory Amount. AMOUNT IN CONTROVERSY. Local Provisions. Justices of the Peace. By statute their jurisdiction in actions for the re- covery of specified personal property has a maximum limit of 50, and also in certain damage cases to such prop- erty. Butler v. Ivie (1860), 30 Mo. 478; Hansberger v. Pacific R. Co. (1869), 43 Mo. 199; Grau v. St. Louis, etc., R. Co. (1873), 54 Mo. 240; Shrewsbury v. Bawtlitz (1874), 57 Mo. 414; Dillard v. St. Louis, etc., R. Co. (1874), 58 Mo. 69. This species of action was enlarged as to the said jurisdiction to $100, and made also concurrently cognizable be- fore a Circuit Court. Henks v. Deberts- hauser (1876), i Mo. App. 402. But compare Mason v. Hannah (1888), 30 Mo. App. 190. By Rev. Sts. 1879, sec - 2881, justices in all counties having less than fifty thousand inhabitants have a maximum limit in replevin suits of $150. Mason v. Hannah (1888), 30 Mo. App. 190; Payne v. Weems(i8S9), 36 Mo. App. 54. In all actions on notes in St. Louis county, justices have a minimum limit of $50 and a maximum of 300. Weis v. Geyer (1877), 4 Mo. App. 404 ; Wannall v. Lighthizer (1878-79), 6 Mo. App. 593. See also Simpson v. Watson (1884), 15 Mo. App. 425. By the charter of Kansas City, acts 1875, a justice has concur- rent jurisdiction with a city recorder of suits on tax bills to the sum of $300 and under. Harris v. Hunt (1888), 97 Mo. 571. By the "Dramshop- keeper" statute, an action to enforce the penalty of $50 is cognizable before a justice. State v. Lack (1875), 58 Mo. 501. By statutes in force in 1889 a de- fendant's counterclaim not exceeding the jurisdictional limit, as applicable to the claim of a plaintiff, is also cogni- zable before a justice. Green v. Beebe (1889), 39 Mo. App. 465. By Rev. Sts. sec. 2835, the jurisdiction of justices of the peace in civil actions was fixed at a maximum of 8150, exclusive of inter- est and costs. State v. Emmerling (1882), 12 Mo. App. 98. Nebraska. Probate Court. By act of March 3, 1873, minimum limit is fixed to where amount claimed exceeds $100. Beach v. Cramer (1876), 5 Neb. 98. County Court. By statute prior to the amendment of 1883 its civil juris- diction had a maximum limit of $500. Brondberg v. Babbott (1883), 14 Neb. 517. Justices of the Peace were limited by the Code, sees, noo and 1103, in suits on notes, bonds, and other written in- struments, to a minimum of $100 and a maximum of $200. Fletcher v. Daugh- erty (1882), 13 Neb. 224; Bullock v. Jordan (1884), 15 Neb. 665; Burton v. Manning, 15 Neb. ^69; Bunkers. State Nat. Bank (1884), 16 Neb. 234; Strang v. Krickbaum (1885), 18 Neb. 365. But in replevin cases a justice may issue the writ although property exceeds the value of $200. Hill v. Wilkinson (1888), 25 Neb. 103. New Hampshire. Court of Appeals. Appellate jurisdiction limited to a minimum of $50 demanded by plaintiff below. Robbins v. Appleby (1820), 2 N. H. 223. Original jurisdiction in personal actions also has the same minimum limit of $50. Hoit v. Ma- lony (1821), 2 N. H. 322. Courts of Common Pleas. By the act of Dec. 13, 1796, their jurisdiction, save in actions involving questions of title to real estate, was fixed at a mini- mum limit of $13.33. Flagg v. Gotham (1834), 7 N. H. 266. Justices of the Peace. By the act of February, 1791, their maximum juris- dictional limit, save in actions involv- ing title, was established at 40 shil- lings; and by the act of February, 1794, this jurisdiction, with the same excep- tion, was increased to a maximum of ^4, to continue for a term of three years, and afterward, by the act of December, 1796, made perpetual.' Flagg v. Gotham (1834), 7 N. H. 266. New Jersey. Supreme Court could by statute entertain any suit of a civil nature in which the amount in con- troversy did not exceed 100. Eacrit v. Keen (1818), 4 N. J. L. 203. District Courts, prior to the act of March 20, 1878, had a limit of $100 and less, and by that act their juris- diction in all civil suits was enlarged to a maximum of $200. State v. Blum (N. J., 1893), 26 Atl. Rep. 861. Justices of the Peace were formerly limited to a maximum jurisdiction of 12. Sou;., v. Hall (1790), I N. J. L. 29; McCauly v. Barnes (1791), I N. J. L. 52. By the act of March 12, 1879, this limit was enlarged to $200 in all small causes. State v. Moran (1881), 43 N. J. L. 49 ; State v. Neumeyer (1889), 51 N. J. L. 299; Whyte v. Mc- Govern, 51 N. J. L. 356. But by the 62d sec. of the Attachment Act the jurisdiction of justices in attachment cases is limited to cases in which the 744 Statutory Amount. AMO UNT IN CONTRO VERS Y. Local Provisions. debt does not exceed $100. State v. Moran (1881), 43 N. J. L. 49. New Mexico. District Courts have concurrent jurisdiction with justices of the peace in actions of debt for sums less than 100. Romero v. Silva, i N. Mex. 157. New York. Court of Appeals, prior to the constitution of 1894, had a stat- utory minimum jurisdictional limit of 500. Butterfield v. Rudde (1874), 58 N. Y. 489; Wheeler v. Scofield (1876), 67 N. Y. 311; Wagner v. Long Island R. Co. (1877), 70 N. Y. 614; Petrie v. Adams (1877), 71 N. Y. 79; Nichols v, Voorhis (1878), 74 N. Y. 28; Trevett v. Barnes (1888), no N. Y. 500; Warren v. Wilder (1889), 114 N. Y. 209; Get- man v. Ingersoll (1889), 117 N. Y. 75; Folts v. State (1890), 118 N. Y. 406; Norris v. Nesbit (1890), 123 N. Y. 650. Supreme Court. Formerly its equity jurisdiction had a minimum limit of |ioo. Vaughn v. Ely (1848), 4 Barb. (N. Y.) 159. By Code of Civ. Proc. this limitation was done away with. Sarsfield v. Van Vaughner, 38 Barb. (N. Y.) 444; Marse v. Benson (1866), 34 N. Y. 358. County Courts. In assumpsit they had by statute a maximum jurisdic- tion of $2000. Beecher v. Allen (1849), 5 Barb. (N. Y.) 169. So also in assault and battery the same limit. Sweet v. Flannagan (Chemung Co. Ct., 1881), 61 How. Pr. (N. Y.) 327. By Laws of 1880, ch. 480, they had a maximum jurisdiction of $3000 and a minimum of $1000 in money demands. Sweet v. Flannagan (Chemung Co. Ct., 1881), 6l How. Pr. (N. Y.) 327. This after- ward held to be in conflict with the constitution, which limits the said jurisdiction to $1000. Lenhard v. Lynch (Erie Co. Ct., 1881), 62 How. Pr. (N. Y.) 56; Gilbert v. York (1886), 41 Hun (N. Y.) 594. See also Kundolf v. Thaleimer (1855), 12 N. Y. 593. Marine Court. Formerly in actions of contract and money claims limited to a minimum of $100. By act of April, 1852, this was increased to $250. People v. Marine Court (1862), 23 How. Pr. (N. Y. Supreme Ct.) 446. By. act of 1853 this was still further enlarged to $500. People v. Marine Court (1862), 23 How. Pr. (N. Y. Su- preme Ct.) 446; Farley v. De Waters, 2 Daly (N. Y.) 192; Murray -v. De Gross, 3 Duer (N. Y.) 668. District Courts in New York City are limited by the act of 1857 in money claims to where the recovery doss not exceed $250. Loomis v. Bowers (1862), 22 How. Pr. (N. Y. C. PI.) 361. City Courts, by Code of Civ. Proc., have a maximum jurisdiction in ac- tions ex contractu of $2000. Crane v. Crane (City Ct.), 19 N. Y. Supp. 691. Justices of the Peace had a jurisdic- tional maximum limit of 80. Tuttle v. Maston (1799), i Johns. Cas. (N. Y.) 25. This was subsequently fixed at a maximum of $50. Moore v. Lyttle (1819), 4 Johns. Ch. (N. Y.) 183; Walker v. Cruikshank (1842), 2 Hill (N. Y.) 296. Subsequently in debt and damage cases the maximum was fixed at $ 100. Bryan v. Cain (1845), i Den. (N. Y.) 507; Daniels v. Hinks- ton (1849), 5 How. Pr. (N. Y. Supreme Ct.) 322; Dennis v. Crittenden (1870), 42 N. Y. 542. This was again en- larged to f 200 in certain cases. Bel- linger v. Ford (1852), 14 Barb. (N. Y.) 250; Humphrey v. Persons (1857), 23 Barb. (N. Y.) 313; Loomis v. Bowers (1862), 22 How. Pr. (N. Y. C. PI.) 361. By Code of Civ. Proc. in actions in- volving mutual accounts a justice is without jurisdiction where the balance as proven to the satisfaction of the justice exceeds $400. Abernathy v. Abernathy (1823), 2 Cow. (N. Y.) 413; Glackin v. Zeller (1868), 52 Barb. (N. Y.) 147; Boston Mills v. Eull (1869), 6 Abb. Pr. N. S. (N. Y. Super. Ct.) 319; Burdick v. Hale, 13 Abb. N. Cas. (N. Y. Supreme Ct.) 60: Lamoure v. Caryl, 4 Den. (N. Y.) 370; Fuller v. Conde, 47 N. Y. 89; Brisbane v. Batavia Bank (1885), 36 Hun (N. Y.) 17; White v. Place (1886), 40 Hun (N. Y.), 481; Shaw v. Roberts (Supreme Ct., 1891), 14 N. Y. Supp. 579. North Carolina County Courts. Ap- pellate jurisdiction in appeals from justices of the peace had a minimum limit in debt claims of 20. Brooks v. Collins (1801), i Tayl. (N. Car.) 236. By Rev. Stats, ch. 31, 40, their orig- inal jurisdiction in suits on bonds, notes, or liquidated accounts had a minimum limit of $100. Newman v. Tabor (1844), 5 Ired. (N. Car.) 231. Superior Courts. By acts of 1777 and 1796 their original jurisdiction had a minimum limit of ;ioo where plaintiff and defendant resided in the same district; where in different dis- tricts the minimum was ^50. Allen v. Stokes (1794), i Hayw. (N. Car.) 142; McNeill v. West (1806), 2 Hayw. (N. Car. ) 21 1 ; Williams v. Holcombe (1818), 745 statutory Amount. A MO UNT IN CONTRO VERS Y. Local Provisions. i Law Repos. (N. Car.) 365; Mera v. Scales (1823), 2 Hawk. (N. Car.) 364- A subsequent statute fixed their minimum jurisdiction at $60 in actions for goods, etc., sold; and in suits on notes, bonds, etc., at $100. Parham v. Hardin (1850), n Ired. (N. Car.) 219; Bean v. Baxter (1855), 2 Jones (N. Car.) 356. See also Smaw v. Cohen (1886), 0.5 N. Car. 85. In ac- tions not arising ex contractu these courts have concurrent jurisdiction with justices of the peace where value of the property claimed is less than $50. Crinkley v. Egerton (1893), 113 N. Car. 142. Justices of the Peace. A single jus- tice was limited in suits to collect debts to 20 and less. Brooks v. Col- lins (1801), i Tayl. (N. Car.) 236. Jurisdiction is limited to a maximum of $60 in all claims except in suits for notes and liquidated demands, in which the statutory maximum is $100. Bryan v. Washington (1834), 4 Dev. (N. Car.) 479; Midgett v. Watson (1846), 7 Ired. (N. Car.) 143; M'Rae v. M'Rae (1838), 3 Dev. & B. (N. Car.) 85. Bat in the case of a debt founded upon a former magistrate's judgment, such a debt being, semble, a liqui- dated claim, the minimum is greater than $60. Morgan v. Allen (1844), 5 Ired. (N. Car.) 156. Criminal Jurisdiction of justices by the constitution of iS6S extended to cases where the punishment in fines could not exceed $50. State v. Moore (1880), 82 N. Car. 659; State v. Ben- thall, 82 N. Car. 664; State v. Wood (1886), 94 N. Car. 855. By the Consti- tution, art. iv, 33, their regular civil jurisdiction in claims was fixed at a maximum of $200. Hedgecock v. Davis (1870), 64 N. Car. 650; Derr v. Stulbs (1880), 83 N. Car. 539; Fisher v. Webb (1881), 84 N. Car. 44; Smaw v. Cohen (1886), 95 N. Car. 85. Ohio Courts of Common Pleas have a minimum original and exclusive jurisdiction of $300. Wood v. O'Fer- rall (1869), 19 Ohio St. 427. Justices of the Peace. They had a maximum statutory limit in civil cases of $70. Aten v. Morgan (1817), Tapp. (Ohio) 232. This was subsequently raised to a minimum of $100. Deming v. Austin (1834), Wright (Ohio) 717. Still later, by the emendatory act of May i, 1854, they were given concur- rent jurisdiction with the Courts of Common Pleas in claims of any sum not exceeding $300 and over $100. McKibben v. Lester (1859), 9 Ohio St. 627; Job v. Harlan (1862), 13 Ohio St. 485; Bowers v. Pomeroy (1871), 21 Ohio St. 184; Butcher v. Smith (1876), 29 Ohio St. 604. Pennsylvania. Supreme Court at nisi prius has an original jurisdiction of single causes of action in which the amount in controversy is as much as $500. Gault v. Vinyard (1856), 26 Pa. St. 282. District Courts of the city and county of Philadelphia have a minimuin limit of $100. Coates v. Cork (1830), I Miles (Pa.) 270; Rodman v. Hutchin- son (1838), 4 Whart. (Pa.) 242; Curry t/.Spink (1854), 23 Pa. St. 58; Lelar v. Gault (1856-58), 2 Phila. (Pa.) 78. Justices of the Peace, by the act of April, 1809, had in actions of trover a maximum jurisdiction of $30. Mc- Kinley v. McCalla (1813), 5 Binney (Pa.) 600. By the act of 1810, except in amicable actions wherein both parties appeared and consented to a greater jurisdiction, a justice's gen- eral maximum limit was $100. Blacks. Coolbaugh(i754, etc.), 2Luz. Leg.Obs. (Pa.) 324; Brenneman v. Greenawalt (1814), i S. & R. (Pa.) 27; McKillipz/. McKillip (1816), 2 S. & R. (Pa.) 489; Hoops v. Crowley (1823), 12 S. & R. (Pa.) 219; Powell v. Shank (1834), 3 Watts (Pa.) 235; Green v. Leymer, 3 Watts (Pa.) 381; Campz/. Wood (1840), 10 Watts (Pa.) nS; Boon v. Collins (1850-55), i Phila. (Pa.) 438; Truitt v. Ludwig (1854), 25 Pa. St. 145; Phi- llips's Appeal (1859), 34 Pa. St. 489; Borland v. Ealy (1862), 43 Pa. St. ill. Compare Delancy v. Brindle (1826), 15 S. & R, (Pa.) 75. The act of May 29, 1879, enlarges the maximum limit of justices, aldermen, and magistrates to $300. Jacobyz>. Shafer (1884), 105 Pa. St. 610; Beatty v. Rankin (1890), 139 Pa. St. 358. See also Tarr v. Eddy, 142 Pa. St. 410. Courts of Common Pleas of the city and county of Philadelphia may also entertain actions in which the amount involved is less than $100, concurrently with justices of the peace, the only result being that in such causes before the latter a successful plaintiff re- covers his costs, while in the former he must always pay his own costs. Hoops v. Crowley (1823), 12 S. & R. (Pa.) 219. South Carolina. Justices of the Peace 46 Statutory Amount. A MO UNT IN CONTRO VERS Y. Local Provisions. were formerly limited in their juris- diction in actions ex contractu to a maxi- mum of $20; and wherever the de- mand was for more than $6 there might be an appeal therefrom, but below this latter sum their adjudication was final and conclusive. Debruehl v. Parker (1814), i Treadw. Const. Rep. (S. Car.) 475; Penning v. Porter (1817), I Mill (S. Car.) 396; Allen v. Singleton (1839), 1 Rice (S. Car.) 289. Subsequently their maximum limit was enlarged to $100. Dillard v. Samuels (1886), 25 S. Car. 318; Cavender v. Ward (1887), 28 S. Car. 470. Wherever in a crimi- nal proceeding the amount of the pen- alty is uncertain, a trial justice cannot take jurisdiction, inasmuch as it may exceed his limit. State v. Weeks (1880), 14 S. Car. 400. Tennessee. Superior Courts have original jurisdiction by the act of 1794, chap. I, sec. 6, for any debt or demand, where plaintiff and defendant both reside in the same district, not exceeding $100; but where they live in different districts then they are limited to a maximum of $50. Hendrick v. Stewart (1809), I Overt. (Tenn.) 476. Cottnty Courts have a minimum limit by the act of 1803, chap. 5, sec. 2, of $50. Martin v. Carter (1831), i Yerg. (Tenn.) 489; Covington v. Neilson (1834), 6 Yerg. (Tenn.) 475- Justices of the Peace were formerly limited in their jurisdiction by the act of 1801, in actions in contract for liqui- dated damages, and by a subsequent act, i.e., that of 1851, in replevin suits, to a maximum of $50. Thompson v. Gibson (1814), 2 Overt. (Tenn.) 235; Smith v. Wallace (1833), 4 Yerg. (Tenn.) 572; Crockett v. Wright (1840), 2 Humph. (Tenn.) 322 ; Collins v. Oliver (1844), 4 Humph. (Tenn.) 439; Bryan v. Buckholder (1847), 8 Humph. (Tenn.) 561 ; Hockaday v. Wilson (1858), i Head (Tenn.) 113; Mason v. Westmoreland (1858), I Head (Tenn.) 555. By the act of 1831, chap. 59, sec. 2, their jurisdiction over notes, bonds, and specialties was increased to 100 as a maximum. Hay v. Lea (1835), 8 Yerg. (Tenn.) 89; Collins v. Oliver (1844), 4 Humph. (Tenn.) 439. By the act of May, 1866, chap. 51, their juris- diction in actions of trover, etc., was further increased to a maximum of $250. Taylor v. Pope (1868), 5 Coldw. (Tenn.)4i3; Whiter. Buchanan (1868), 6 Coldw. (Tenn.) 32. By the act of 1852 their jurisdiction in attachment was extended to a maximum limit of $500. Apperson v. Looney (1853), z Swan (Tenn.) 664. A similar exten- sion to $500 was also made in certain actions on negotiable paper. Mason v. Westmoreland (1858), i Head (Tenn.) 555. And likewise in actions of replevin. Godsey v. Weatherford (1888), 86 Tenn. 670. Chancery Courts have a minimum jurisdiction ordinarily of $50. Malone v. Dean (1882), 9 Lea (Tenn.) 336. Compare Frazier v. Browning, n Lea (Tenn.) 253. Texas Supreme Court. By act of 1866 its appellate jurisdiction in cases appealed to it from the District Court, which had been previously appealed to the latter from the County Court, had a minimum limit to where judgments below were $200. Meriweather v. Whitley(i873),38Tex. 525. Court of Appeals. Where cause is appealed thereto from a trial de nova in the County Court, on appeal to the latter from a justice of the peace.it has a minimum limit of $100. Wyatt v. Barmore (1878), 5 Tex. App. 332; John- son v. State (1888), 26 Tex. App. 395; Gulf, etc., R. Co. v. Farmer (Tex. Civ. App., 1893), 22 S. W. Rep. 515; Gulf, etc., R. Co. v. Rowley (Tex. Civ. App., 1893), 22 S. W. Rep. 182. Where there has been no trial de no-vo in the County Court in such appeal, then the minimum is $20. Williams v. Sims (Tex. App., 1890), 16 S. W. Rep. 786. County Courts. Appellate jurisdic- tion in appeals from justices of the peace has a minimum limit of $20. Pevito v. Rodgers (1880), 52 Tex. 581; Brazoria County v. Calhoun (1884), 6l Tex. 223; Gulf, etc., R. Co. v. Row- ley (Tex. Civ. App., 1893), 22 S. W. Rep. 182. Original Jurisdiction of County Courts has a maximum of $500 by the constitution of 1866. Hamman v. Lewis (1870-71), 34 Tex. 474. And this includes the exact sum of $500. Gulf, etc., R. Co. v. Ramboldt, 67 Tex. 654; Garrison v. Pacific Express Co. (1887), 69 Tex. 345; Carroll v. Silk, 70 Tex. 23; Henderson v. Anglo-American L. , etc. Assoc. (Tex., 1888), 7 S. W. Rep. 837. But compare Betterton v. Echols, 85 Tex. 212; Erwin v. Blanks, 60 Tex. 583; Carney v. Marsalis, 77 Tex. 62. In misdemeanors County Courts had con- current jurisdiction with justices of the peace, in 1878, in cases in which the maximum fine did not exceed $200. 747 Statutory Amount. AMO UNT IN CONTRO VERS Y. Local Provisions. Solon v. State (1878), 5 Tex. App. 301. District Courts had formerly a mini- mum jurisdiction of $100, and at the same time, in claims wherein the exact amount of 100 was involved, they had concurrent jurisdiction with justices, of the peace. Johnson v. Happell (1849), 4 Tex. 96; Love v. Mclntyre (1848), 3 Tex. 10. Compare Lockridge v. Baldwin (1857), 20 Tex. 303, 70 Am. Dec. 385. Subsequently the minimum limit was fixed at $500. Bond v. Dillard (1878), 50 Tex. 302; Chrisman v. Grayham (1878), 49 Tex. 491; Moody v. Cox, 54 Tex. 492; Mixan v. Grove (1883), 59 Tex. 573; Erwin v. Blanks, 60 Tex. 583 ; State v. De Gress, 72 Tex. 242; East Dallas v. State, 73 Tex. 371; Largen v. State, 76 Tex. 323; Betterton v. Echols (1892), 85 Tex. 212. Justices of the Peace, by statute, have a maximum limit of jurisdiction of of $100. Johnson v. Happell (1849), 4 Tex. 96; State v. Newhous (1874), 41 Tex. 185. United States. Supreme Court had formerly a minimum limit in jurisdic- tion of 2000. U. S. v. More (1805), 3 Cranch (U. S.) 159. See also Rich- mond v. Milwaukee (1858), 21 How. (U. S.) 80. A late act of Congress (Feb. 1889) has increased this mini- mum to $5000. See 25 U. S. Sts. 693. By the act of Congress of April, 1816, in appeals from the Circuit Court of the District of Columbia to the U. S. Supreme Court the minimum limit was fixed at $1000. Campbell v. Read (1864). 2 Wall. (U. S.) 198. See also Nicholls v. Hodges (1828), I Pet. (U. S.) 562. By act of March 3, 1885, ap- peals from the Supreme Courts of the Territories and the Supreme Court of the District of Columbia were depen- dent upon the general established minimum jurisdictional amount of $5000. Street v. Ferry (1886), 119 U. S. 385- Circuit Courts had a minimum juris- dictional limit of $500. Towne v. Smith (1845), i Woodb. & M. (U. S.) 115; Kohl v. Hannaford (1875), 4 Rec. (Ohio) 372. By act of Congress, Aug. 13, 1888, correcting act of March 3, 1887, this was increased to a minimum limit of $2000. Baker v. Howell(i89o), 44 Fed. Rep. 113. A similar note seems desirable to be here inserted to the effect that cases setting forth the statutory limit of U. S. Supreme, Cir- cuit, and District Courts are so numer- ous and are so fully cited elsewhere in this article (see ante, titles V. REAL AMOUNT and VIII. AGGREGATED AMOUNT, etc., and notes) that it would be superfluous to repeat them here. By act of Congress, March i, 1889, U. S. courts in Indian Territory were lim- ited in their civil jurisdiction to a minimum of $100. Gulf, etc., R. Co. v. Washington (1892), 49 Fed. Rep. 347. Utah Territory. -Justices of the Peace have, by the organic act of Septem- ber gth, 1850, a maximum jurisdic- tional limit of $100. Snow v. U. S. (1873), 18 Wall. (U. S.) 317. Vermont. County Courts. The stat- ute defining their jurisdiction and that of justices of the peace was at one time construed to give them concur- rent original jurisdiction therewith in unliquidated demands above $7 and under $33. Young v. Sanders (1800), I Tyler (Vt.) 8. This was subse- quently overruled, and it was held that, in such demands and also in liquidated demands to a maximum limit of $50, their jurisdiction was only appellate, the original cognizance of such actions residing in justices alone. Glidden v. Elkins (1801), 2 Tyler (Vt.) 218. In actions of trespass to the freehold their jurisdiction was limited by statute, passed subsequently, to $20 as a minimum. Doubleday v. Marstin (1854), 27 Vt. 488. Justices of the Peace had by statute at various periods a maximum original jurisdiction in civil actions of respec- tively S33, $53, and $100. Carlton v. Young (1826), i Aik. (Vt.) 332. See also Prindle v. Cogswell (1837), 9 Vt. 183; Beach v. Boynton (1853), 26 Vt. 105. By the act of 1867 a justice of the peace has a maximum limit of $200 in a suit between adjoining land- owners to resover damages for a fail- ure to build and repair a partition fence. Hall v. Niles (1872), 44 Vt. 439- Virginia. Supreme Court of Appeals had by Code, ch. 182, sec. 3, in force in 1851, a minimufn appellate jurisdic- tion of $200. McGruder v. Lyons (1851), 7 Gratt. (Va.) 233. Subse- quently, by constitution, art. 6, sec. 2, this minimum limit in civil cases was increased to $500, save in certain specified exceptional cases. Meal v. Com. (1871), 21 Gratt. (Va.) 511; Mc- Crowell v. Burson (1884), 79 Va. 290; Richmond, etc., R. Co. v. Knopffs 748 Statutory Amount. AMOUNT IN CONTROVERSY. Local Provisions. (1890), 86 Va. 981; Pattie v. Guggen- heimer, 86 Va. 993; Atlantic, etc., R. Co. v. Reid (1890), 87 Va. 119; Prince George's Co. v. Atlantic, etc., R. Co., 87 Va. 283; Com. v. Chaffin, 87 Va. 545; Seller v. Reed, 88 Va. 377; Patteson v. McKinney (1892), 88 Va. 748. County Courts. By ist Rev. Code, sec. 55, there might be a superseded* therefrom to a Circuit Court where the value of a judgment amounted to $33.33. Clapman v. Lewis (1789- 1814), I Va. Cas. 182. By Rev. Code, ch. 69, sec. 9, County Courts have a maximum limit of $100 to review in any manner a magistrate's judgment, whether by appeal, writ of error, cer- tiorari, or mandamus. Hay v. Pistor (1830), Leigh (Va.) 707. Justices of the Peace, by Code, sec. 2939, have a maximum limit in claims generally of $100; in claims to recover fines their maximum is $20. Western Union Tel. Co. v. Pettyjohn (1891), 88 Va. 296. Washington. Supreme Court, by Code of Procedure, sec. 1402, is lim- ited to a minimum of $200 in ap- peals in civil actions. Tom v. Say- ward (1892), 5 Wash. 383; State v. Fisher (1892), 4 Wash. 382. Superior Courts, by constitution, have a minimum of $100; below that sum justices of the peace take cog- nizance. Moore v. Perrott (Wash.,. 1891), 2 Wash. i. West Virginia. Supreme Court of Ap- peals is limited by the constitution and statutes to a minimum jurisdiction of $100 in appeals, writs of error, certi- orari, and mandamus. Tompkins v. Burgess (1867), 2 W. Va. 187; Cleven- ger v. Dawson (1879), 15 W. Va. 348; Farnsworth v. Baltimore, etc., R. Co. (1886), 28 W. Va. 815. Wisconsin (Territory). Justices of the Peace. By organic law justices of the peace had a maximum limit of $50 in suits on accounts. Woodward v. Garner (1847), 2 Pin. (Wis.) 28; Syband v, Carson, 2 Pin. (Wis.) 33. By Wisconsin Rev. Statutes this was increased to $100. Keegan v. Single- ton (1856), 5 Wis. 115. See also Felt v. Felt (1865), 19 Wis. 193. By the laws of 1870 this was still further in- creased to a maximum of $200. How- ard v. Mansfield (1872), 30 Wis. 75. By subsequent enactment in actions of account the maximum limit was made $500. Cuer v. Ross (1880), 49 Wis. 652. Wyoming Territory. Justices of the Peace were limited by the organic law to a maximum jurisdiction of $100 in civil and criminal cases not involving- land titles and not amounting to felo- nies. Wolcott v. Territory (1872), r Wyoming Ter. 67. 749 ANOTHER SUIT PENDING. By C. C. MOORE. L As A GROUND OF ABATEMENT, 750. 1. General Statement of the Rule, 750. a. At Law, 750. b. In Equity, 752. 2. A Former Suit, 752. 3. A Pending Suit, 754. 4. Between the Same Parties, 757. 5. For the Same Cause of Action, 761. 6. In the Same Jurisdiction, 764. 7. Garnishments in Foreign Jurisdictions, 765. 8. Where the Former Suit is Defective, 766. II. As A GROUND FOR CONTINUANCE OH STAY, 767 1. Continuance, 767. 2. Stay of Proceedings, 768. III. TAKING THE OBJECTION, 770. 1. At Common Law, 770. a. Objection How Taken, 770. b. At What Stage of Proceedings, 771. c. Requisites of the Plea, 771. d. Proceedings Subsequent to Plea, 772. 2. In Equity, 773. 3. Under Code Systems, 775. a. Objection, How Taken, 775. b. At What Stage of Proceedings, 775. c. Answers in Abatement, 776. d' Judgment on Sustaining Answer, 776. 4. In the Admiralty, 776. I. As A GROUND OF ABATEMENT 1. General Statement of the Rule a. AT LAW. It is an ancient rule of the common law that a man shall not be twice vexed for one and the same cause j 1 and the pendency of a former suit in the same jurisdiction 2 between 1. Sparry's Case, 5 Coke 61. abate, * * * but it is said that all the 2. Suit in Inferior Court. It was said king's courts at Westminster have been in Sparry's Case, 5 Coke 62a, that "if time out of mind, etc., and so a man a man brings an action of debt by bill cannot tell which of them is the most in London or Norwich or in any other ancient." It was said (obi er) in Browne inferior court, and afterwards brings v. Joy, 9 Johns. (N. Y.) 221, that ac- an action of debt in the Common cording to the doctrine of Sparry's Pleas, this suit in the higher court Case, 5 Coke 62a, a plea of the pen- which is brought pending the suit by dency of an action in the Court of bill in an inferior court shall not Common Pleas of a county would not 750 As a Ground ANOTHER SUIT PENDING. of Abatement. the same parties for the same cause of action and relief 1 may be 'pleaded in abatement of a second suit. 2 The term "suit" as herein used is not confined to altercations at common law or in equity, but may extend to proceedings of a special nature where ample remedy is afforded thereby. 3 abate a subsequent suit in the Su- preme Court in the same state. Bul- lock v. Bolles, 9 R. I. 501, and Smith v. Atlantic Mut. F. Ins. Co., 22 N. H. 24, give similar currency to the ancient rule. But see Cleveland, etc., R. Co. v. Erie, 27 Pa. St. 380; Johnston v. Bower, 4 Hen. & M. (Va.) 487; Platt v. Platt, Col. & C. Cas. (N. Y.) 42. 1. Actions in Rem and in Personam. A party may proceed by suit in a state court and by a proceeding in rem in admiralty at the same time. Certain Logs of Mahogany, 2 Sumn. (U. S.) 589; People v. Judges, 27 Mich. 406, 15 Am. Rep. 195; Russell v. Alvarez, 5 Cal. 48; Wolf v. Cook, 40 Fed. Rep. 432. Suit Pending in Equity. A former bill pending in equity cannot be pleaded in abatement of a subsequent action at law. Blanchard v. Stone, i6Vt. 234; Hatch v. Spofford, 22 Conn. 498, 58 Am. Dec. 433; Colt v. Partridge, 7 Met. ( Mass.) 575; Denny v. Gardner, 2 Brev. (S. Car.) 70; Mattel v. Conant, 156 Mass. 418; Moore v. Peirce (Va., 1889), 9 S. E. Rep. 1008; Williamson v. Paxton, 18 Gratt. (Va.) 475; Joslin v. Millspaugh, 27 Mich. 517; Kittredge v. Race, 92 U. S. 116; Black v. Lackey, 2 B. Mon. . Tarbox, 48 Minn. 18. Com- pare Buchanan v. Logansport, etc., R. W. Co., 71 Ind. 265. In such a case the proper course is to apply for an order to stay proceedings until the writ of error is disposed of. Hailman v. Buckmaster, 8 111. 498. A plea of the pendency of an appeal in the former suit " at the return term of the writ " in the second suit was held suf- ficient. Boswell v. Tunnell, 10 Ala. 958. Appeal from Order Denying Injunction. The pendency of an appeal from a judgment denying an injunction does not affect the right of the defendant to proceed against the plaintiff touch- ing matters involved in the suit for injunction. The appeal does not have the effect of granting the injunction. Smith v. Tobener, 32 Mo. App. 601. Subsequent Suit Inadmissible as Evi- dence. The pendency of the second suit is not admissible in mitigation of damages upon the trial of the first. Sherwood v. Hammond, 4 Blackf. (Ind.) 504. Certainty Eequired in Answer. An answer alleging that there is another suit pending, etc., but not alleging when it was commenced, is bad on demurrer. Eiceman v. Leonard, 75 Ind. 46. 2. Morton v. Webb, 7 Vt. 123; Town- send v. Chase, i Cow. (N. Y.) 115. 3. Davis v. Dunklee, 9 N. H. 545. 4. Beach v. Norton, 8 Conn. 71; Davis v. Dunklee, 9 N. H. 545. At Different Times on Same Day. If they are served at different times on the same day, it seems that only the second will abate. Morton v. Webb, 7 Vt. 123; Davis v. Dunklee, 9 N. H. 545, disapproving of Pie v. Coke, Hobart 128, the authority of which was shaken in Combe v. Pitt, 3 Burr. 1434, I W. Bl. 437. Compare Middlebrook v. Travis, 68 Hun (N. Y.) 155, where both suits were commenced on the same day, and it was held that, as the law does not regard fractions of a day, the judge was not precluded, upon the second action being first ready for trial, from proceeding to judgment, although the defendant had pleaded the pendency of the first action. 5. Davis v. Dinklee, 9 N. H. 545, holding also that if the defendant can- i Encyc. PI. & Pr. 48. 753 As a Ground ANOTHER SUIT PENDING. of Abatement. 3. A Pending Suit Commencement of Suit. In order to constitute a former action pending, so as to abate a second, it must appear that the prior action had been technically "commenced " when the latter action was instituted j 1 and the plea must aver and the not readily ascertain the priority he may apply to the court, and the plain- tiff may be called upon to furnish evi- dence that one of the suits was in fact commenced before the other, and if this is not shown the court may well adjudge that the defendant shall an- swer neither; citing Pie v. Coke, Moore 864, Hobart 128. 1. Writ Not Returned. Com. v. Churchhill, 5 Mass. 174, holds that the writ in the suit pleaded in abatement must be returned and entered before it can be pleaded, and that until then it cannot be said to be pending in court. Distinctions between Writs. After the writ was returned, however, the old books made a difference between writs which comprehend certainty, as a debt determined, and writs which compre- hend no certainty, as in writs of tres- pass for goods, assize, etc. If certain, it was a good plea to say tihe writ was brought pending another; but in writs personal or mixed, where no certainty is contained, then it was no plea. But after declaration it was made certain, and then the plea was good, the gener- ality being reduced to certainty. Bul- lock v. Bolles, 9 R. I. 503. See also Reg. v. Harris, Cro. Eliz. 261; Armi- tage v. Row, 12 Mod. 91. When a Summons Insufficient Without a Complaint. Where, in an action upon a note for 30 (among other things), the answer set up as a defense that there was another pending, etc., upon that note, and it appeared that an ac- tion had been brought by the plaintiff against the defendant, in which a sum- mons had been issued and served, but in which no complaint had been served or filed, it was held that this proof was insufficient to sustain the plea, as it did not show that the first suit was pendingon that note, and that this could only be shown by proving that, follow- ing the summons, a complaint had been made on the note. Hoag v. Weston (Supreme Ct.), 10 N. Y. Civ. Pro. Rep. 92. To the same effect see Phelps -v. Gee, 29 Hun (N. Y.) 202. Arrest upon Capias. That the de- fendant was arrested upon a capias is not a good plea of a former action pending; and it not appearing that a declaration had been filed or served, the pleading is not helped by the aver- ment that the capias was for the same identical cause of action. Gardner v. Clark, 21 N. Y. 399. Process Necessary. It is necessary to show that process was issued in the former action. Primm v. Gray, loCal. 522. If no summons was issued on the former complaint, and there was no voluntary appearance on the part of the defendant therein, it is not pending. Weaver v. Conger, 10 Cal. 233; Warner v. Warner (Supreme Ct.), 27 N. Y. Supp. 160, 6 Misc. Rep. 249, an action for partition, in which no summons was served on one of the de- fendants, who subsequently brought a suit for the same matter against the other parties. Utica Clothes Dryer Mfg. Co. v. Otis, 37 Hun (N. Y.) 301, a similar case. Papers purporting to be acomplaint and answer in an action similarly entitled, but not shown to have been filed, served, or used in any action, with no evidence of a sum- mons, are insufficient to support a plea of another action pending. Woodard v. Stark (S. Dak., 1894), 57 N. W. Rep. 496. Where a complaint is set aside with leave to serve an amended complaint and summons on payment of costs, which is not done, the action is not deemed pending. Owens v. , Loomis, 19 Hun (N. Y.)6o6. Whether after an action has been commenced and an attachment made of the defend- ant's property, but no summons left and the action has not been entered, a plea in abatement for another action pending can be sustained, qucere. Ben- nett -v. Chase, 21 N. H. 570. Defect of Jurisdiction. Where the only jurisdiction over the defendant in the former suit (in equity) was ac- quired by an answer filed in his be- half without his consent, its pendency was held to be no bar to a suit by him as complainant for matters involved in the first suit. Cray v. Johnson (N. J., 1890), 20 All. Rep. 212. As to What Constitutes the Commence- ment of a Suit, see generally ACTIONS, ante, p. Iig. 754 As a Ground ANOTHER SUIT PENDING. of Abatement. proof affirmatively show that the former action is still pend- ing. 1 Discontinuance or Dismissal. Formerly the only question was whether at the time of suing out the second writ there was a writ in being, and it was held to be no answer to the plea that the first suit was nded when the plea was put in ; a but the prevailing rule now is that the discontinuance or dismissal of the first suit after the com- mencement of the second may be set up in reply to the plea, and thus defeat an abatement. 3 So where the former proceeding is Where Former Summons Quashed. Where a summons has been quashed the suit is no longer pending. Clark v. Ballou, i Pa. Dist. Rep. 430. Judgment on Demurrer in Former Suit. A suit which has proceeded to final judgment on demurrer against the plaintiff is no longer pending where no appeal has been taken; and an appeal taken subsequently to the institution of the second suit will not relate to the entry of the judgment appealed from so as to defeat the plaintiff's second action intermediate the judgment and the appeal. Porter v. Kingsburv, 77 N. Y. 165. Former Action Abated by Death. An action for damages for an injury to the person of the plaintiff abates by his death, and the pendency thereof cannot be pleaded in abatement of an action brought by his personal repre- sentative for damages resulting from his death. Indianapolis, etc., R. Co. v. Stout, 53 Ind. 143. 2. Bac. Abr., tit. Abatement (M.); 39 Hen. VI, 12, pi. 16; Com. v. Churchill, 5 Mass. 174; Parker v. Colcord, 2 N. H. 36. See also Gamsby v. Ray, 52 N. H. 513- 3. Porters. Kingsbury, 77 N. Y. 165; Grossman v. Universal Rubber Co., 131 N. Y. 636; Leavitt v. Mowse, 54 Md. 613; Adams v. Gardiner, 13 B. M'on. (Ky.) 197. See also Grossman. v. Uni- versal Rubber Co., 127 N. Y. 34; Hyatt v. Ingalls, 124 N. Y. 93; Clark v. Com- ford,45 La. Ann. 502. Contra, Gamsby v. Ray, 52 N. H. 513; Parker v. Col- cord, 2 N. H. 36. Nunc Pro Tune Order of Discontinuance. An order of nonsuit in a former action, entered subsequently to the institution of the second suit, but nunc 1. Bancroft v. Eastman, 7 111. 264; Hadden v. St. Louis, etc., R. Co., 57 How. Pr. (N. Y. Supreme Ct.) 390; O'Beirne v. Lloyd, i Sweeney (N. Y.) 19. " The effective part of such a plea is that the action is still pending. * * * There is no presumption of law that a suit once pending is still pending." Phelps v. Winona, etc., R. Co., 37 Minn. 485, 5 Am. St. Rep. 867; To- land v. Tichenor, 3 Rawle (Pa.) 323; Lewis v. Higgins, 52 Md. 614; Wales v. Jones, i Mich. 254; Fitzgerald v. Gray, 161 Ind. 109. Sufficiency of Averment. An aver- ment that another action had been brought and removed to a federal court, that no order had been made dismissing it, and that the defendant had not stipulated that it should be dismissed does not fully aver that the action is pending. Hawley v. Chi- cago, etc., R. Co., 71 Iowa 717. But if the plea, states that the suit is still pending, it need not allege that it was not discontinued before the plea was filed. Nelson v. Foster, 5 Biss. (U. S.) 44. Compare on x this point Craig v. Smith, 10 Colo. 220; Yentzer v. Thayer, 10 Colo. 63. Parol Evidence of Pendency. The pen- dency of a suit in a court of record can only be proved by record evidence, not by parol testimony. Smiley v. Dewey, 17 Ohio 156, where it was sought to introduce parol evidence that an ap- peal had been taken and was pending. Smith v. Ricketts, Liv. Opin. (N. Y.) 27; Wrights. Maseras, 56 Barb. (N. Y.) 521. Compare Damon v. Denny, 54 Conn. 253. Erroneous Dismissal of Former Suit. An erroneous dismissal puts an end to the suit; but as to the effect of an ap- peal from such dismissal in restoring pro tune as of a date prior thereto, the action, quare. Lord v. Ostrander, 43 Barb. (N. Y.) 337. If the appeal were void, doubtless it would be in- operative for any purpose. Bailey v. Bremond, 7 Tex. 537. operates to prevent the pendency of the first action, and cannot be impeached collaterally by plea in abatement in the second suit. Wilson v. Pearson, 102 N. Car. 290. The same point was 755 As a Ground ANOTHER SUIT PENDING. of Abatement. in rem, if it be shown that it has been finally disposed of without producing sufficient to pay the debt, the plaintiff may proceed to- trial and judgment in the later action. 1 Evidence of Termination. But in all such cases the evidence of the termination of the earlier action or proceeding must be in the form of some judicial declaration to that effect.* Writ of Error or Appeal. The pendency of a writ of error or an appeal from a judgment in a former suit, where it operates as a decided in Boland v. Benson, 50 Wis. 225. Discontinuance After Plea. Accord- ing to the later cases, the objection of a former suit pending is removed by its dismissal or discontinuance, even after plea in abatement in the second suit. Beals v. Cameron, 3 How. Pr. (N. Y. Supreme Ct.) 414; Averill v. Patterson, 10 How. Pr. (N. Y. Ct. of App.) 85, 10 N. Y. 500; Marston v. Lawrence, i Johns. Cas. (N. Y.) 397; Smith v. White, 7 Hill (N. Y.) 520; Trow's Printing, etc., Co. v. New York Book-Binding Co. (City Ct.), 3 N. Y. Supp. sgjO'Beirne v. Lloyd, i Sweeney (N. Y.) 19; Warder v. Henry, 117 Mo. 530; Rogers v. Hoskins, 15 Ga. 270; Norfolk, etc., R. Co. v. Nunnally, 88 Va. 546; Chamberlain v. Eckert, 2 Biss. (U. S.) 124; Trawick v. Martin Brown Co,, 74 Tex. 522; Payne v. Benham, 16 Tex. 367; Grider v. Apperson, 32 Ark. 332; Findlay v. Keim, 62 Pa. St. 112. ^Contra. Froggy. Long, 3 Dana(Ky.) 157, 28 Am. Dec. 69. See also Demond v. Crary, i Fed. Rep. 480; Knight's Case, i Salk. 329; Hopkins v. Ludlow, i Phila. (Pa.) 272. Curtis v. Piedmont Lumber, etc., Co., 109 N. Car. 401, seems to adhere to the old and almost universally discarded rule. But com- pare Wilson v. Pearson, 102 N. Car. 290. Discontinuance Before Trial. Many cases go further and hold that a dis- missal or discontinuance of the former action at any time before the question as to its pendency actually comes be- fore the court for trial removes the bar. Moorman v. Gibbs, 75 Iowa 537; Ball v, Keokuk, etc., R. Co., 71 Iowa 306; Rush v. Frost, 49 Iowa 183; over- ruling Rawson v. Guiberson, 6 Iowa 507; Dyer v. Scalmanim, 69 Cal. 637; Butler v. Jarvis, 51 Hun (N. Y.) 248; Nichols v. State Bank, 45 Minn. 102; Pagez/. Mitchell, 37 Minn. 368; Schmidt v. Braunn, 10 La. Ann. 26; Warder v. Henry, 117 Mo. 530, holding that the dismissal may be set up in an amended reply. See also Williamson v . Paxton, 18 Gratt. (Va.) 504. In Swart v. Borst, 17 How. Pr. (N.Y.. Supreme Ct.) 69, it was held that in order to make the discontinuance of the first suit effectual as an answer to the defendant's plea, the plaintiff must at least discontinue by the time that the issue is regarded as perfected and the cause noticed for trial in the sec- ond suit. Striking Out Answer as Sham. Where an answer sets up the defense of an- other action pending, which allegation, though true at the time the answer is. served, is untrue at the time of notic- ing a motion to strike out the defense by reason of an order for discontinu- ance having been entered in the mean- time, that part of the answer will be stricken out as sham. Clark v. Clark, 7 Robt. (N. Y.) 276. 1. Grossman v. Universal Rubber Co., 131 N. Y. 636, holding that there must be record evidence, that the former proceeding has not resulted in a recovery of the debt. 2. Grossman v. Universal Rubber Co., 131 N. Y. 636; Averill v. Patter- son, 10 How. Pr. (N. Y. Ct. of App.) 85, holding that a notice in writ- ing is not equivalent in this behalf to an order of discontinuance, but that a reply setting up a discontinu- ance need not aver payment of costs where it does not appear that the defendants appeared in the first suit. O'Beirne v. Lloyd, i Sweeney (N. Y.) 19; Trow's Printing, etc., Co. v. New York Book-Binding Co. (City Ct.), 3 N. Y. Supp. 59, where the practice is stated. See also Gamsby v. Ray, 52 N. H. 513- Payment of Costs in First Suit. As to the necessity of payment of costs in the first suit to give validity to an or- der of discontinuance, see White v. Smith, 4 Hill (N. Y.) 166, modified on appeal in 7 Hill (N. Y.) 520; Trow's Printing, etc., Co. v. New York Book- Binding Co.(City Ct.), 3 N. Y. Supp. 59. 756 As a Ground ANOTHER SUIT PENDING. of Abatement superseded*, may be pleaded in abatement of a subsequent suit between the same parties for the same subject-matter. 1 Eeversal on Appeal. A former suit is still pending although the judgment therein has been reversed on appeal and the cause remanded for further proceedings. 2 4. Between the Same Parties. Substantial identity. The pendency of a suit will not abate one subsequently brought unless there be a substantial identity of parties. 3 of error in abatement of a suit on the judgment must conclude clearly in abatement and not in bar. And that the appeal was taken and a. superseded! bond filed prior to the commencement of the present suit. Althen v. Tarbox, 48 Minn. 18; I, 2, note i, p. 753, supra. 2. Gregory v. Gregory, 33 N. Y. Super. Ct. I. " Objection when Taken by Demurrer. If such facts appear on the face of the complaint in the second suit, it is de- murrable. Capehart v. Van Campen, 10 Minn. 158. Final Reversal on Appeal. A former judgment wholly reversed in error is no defense to a subsequent suit for the same cause of action. Smock v. Graham, i Blackf. (Ind.) 314. 3. New York. Geery v. Webster, n Hun (N. Y.) 428; Egan v. Laemmle (C. PI.), 25 N. Y. Supp. 330; Commercial Bank v. Heilbronner, 52 N. Y. Super. Ct. 388; Bakers/. Baker (Supreme Ct.), 23 N. Y. Supp. 1083; Keeler v. Brook- lyn El. R. Co., 9 Abb. N. Cas. (N. Y. Supreme Ct.) 166; Auburn City Bank v. Leonard, 20 How. Pr. (N. Y. Su- preme Ct.) 193; Raven v. Smith (Su- preme Ct.), 24 N. Y. Supp. 601. Iowa. Jones v. Brandt, 59 Iowa 332. Connecticut. Hatch v. Spofford, 22 Conn. 485. Indiana. Smith v. Blatchford,2 Ind. 184, 52 Am. Dec. 504; Bryan v. Scholl, 109 Ind. 367. Nebraska. McReady v. Rogers, I Neb. 124, 93 Am. Dec. 333. West Virginia. See v. Rogers, 31 W. Va. 473. Pennsylvania. Cornelius v. Vanars- dallen, 3 Pa. St. 435; Blackburn v. Watson, 85 Pa. St. 241; Streaper v. Fisher, i Rawle (Pa.) 155, 18 Am. Dec. 604; King v. Blackmore, 72 Pa. St. 347, 13 Am. Rep. 684. California. Calaveras County v. Brockway, 30 Cal. 325; Kerns v. Mc- Kean, 65 Cal. 416. United States. Massachusetts Mut. L. Ins. Co. v. Chicago, etc., R. Co., 13 1. Fisk v. Atkinson 71 Cal. 452; Hailman v. Buckmaster, 8 111. 498; Merritt v. Richey, 100 Ind. 416; Peck v. Hotchkiss, 52 How. Pr. (N, Y. Su- preme Ct.) 226. Compare Walker v. Heller, 73 Ind. 46. As to the effect of a writ of error subsequently sued out, see I, 2, supra, p. 753, note i. Void Appeal. A void appeal or mo- tion for new trial cannot have the effect of protracting the pendency of the former suit. Bailey v. Bremond, 7 Tex. 537; Haviland v. Wehle, n Abb. Pr. N. S. (N. Y. C. PI.) 449, an appeal from a judgment of dismissal, the original court having no jurisdic- tion. Bill to Reinstate an Appeal. A bill in chancery to reinstate an appeal that has been dismissed is not available in abatement of an action upon the appeal bond. Evans v. Lingle, 55 111. 455- Dismissal of Appeal from Order of Non- suit. Where an appeal from an order of nonsuit has been dismissed or abandoned, the order of non- suit and not the dismissal of the appeal is to be regarded as the legal termination of the suit; and the pen- dency of the appeal cannot be pleaded in abatement of a new action brought in the interval between the order of nonsuit and the dismissal of the ap- peal. Trimmier v. Trail, 2 Bailey (S. Car.) 480. Pleading. A plea in abatement must show that the appeal has been per- fected by the necessary steps. Fitz- gerald v. Gray, 61 Ind. 109; Morgan County v. Holman, 34 Ind. 256; Jen- kins v. Pepoon, 2 Johns. Cas. (N. Y.) 312. And, in case of a writ of error, that all the necessary steps were taken to make it a supersedeas, as, for in- stance, in Jenkins v. Pepoon, 2 Johns. Cas. (N. Y.) 312, that a copy of the writ of error for the adverse party was lodged in the clerk's office within the time limited by statute; the same case holding that a plea of a pendin writ 757 As a Ground ANOTHER SUIT PENDING. of Abatement. Identity of Plaintiffs. - the same. 1 Fed. Rep. 857; Jenkins v. Eldridge, 3 Story (U. S.) 181, 183. A'ansas. Mullen v. Mullock, 22 Kan. 598; Rizer v. Gillpatrick, 16 Kan. 564. In Wood v. Lake, 13 Wis. 84, the rule was stated to be that the par- ties must be the same, as plaintiffs and defendants. Similar expressions are to be found in other cases. Her- tell v. Van Buren, 3 Edw. Ch. (N. Y.) 20; Estes v. Worthington, 30 Fed. Rep. 465- . Election Contest and Quo Warranto. The fact that a contest proceeding be- tween two parties claiming 'a public office is pending does not affect the right of the state to proceed by in- formation against the incumbent. Vogel v. State, 107 Ind. 374. Test of Identity. The identity of the parties, case, and relief must be such that a judgment therein can be pleaded in bar as a former adjudication. Wat- son v. Jones, 13 Wall. (U. S.) 679; Beyersdorf v. Sump, 39 Minn. 495, 12 Am. St. Rep. 678; Moore v. Holt, 3 Tenn. Ch. 141; Parsons v. Greenville, etc., R. Co., i Hughes (U. S.) 279; Dawson v. Vaughan, 42 Ind. 395; Mat- tel v. Conant, 156 Mass. 418. The pendency of an action of trespass against a deputy sheriff for his wrong- ful act done under color of his office cannot be pleaded in abatement of an action against the sheriff for the same cause. Severy v. Nye, 58 Me. 246. 1. Thomas v. Freelon, 17 Vt. 138; O'Connor v. Blake, 29 Cal. 312; Ayres v. Bensley, 32 Cal. 620; Felch v. Beaudry, 40 Cal. 440; Loyd v. Rey- nolds, 29 Ind. 299; Langham v. Thom- ason, 5 Tex. 127;, Certain Logs of Ma- hogany, 2 Sumn. (U. S.) 589; Wadleigh v. Veazie, 3 Sumn. (U. S.) 165; Wood z'.Lake, i3Wis. 84; Osborn v. Cloud. 23 Iowa 104, 92 Am. Dec. 413; Casey v. Harrison, 2 Dev. (N. Car.) 244; Hall v. Holcombe, 26 Ala. 720; Dawson v. Vaughan, 42 Ind. 395; Moore v. Holt, 3 Tenn. Ch. 141; Bennett v. Chase, 21 N. H. 584; Wadleigh v. Pillsbury, 14 N. H. 373. See also Brooks v. Mills County, 4 Dill. (U. S.) 524; Fink v. Al- len, 36 N.Y. Super. Ct. 350; Mandeville v. Avery, 124 N. Y. 376, 21 Am. St. Rep. 678; Copley Iron Co. v. Pope, 3 Daly (N. Y.) 144, 108 N. Y. 232; Hor- ton v. Bassett, 17 R. I. 129; Treasurers v. Bates, 2 Bailey (S. Car.) 382; Hecker -The plaintiffs, at least, in each suit must be v. Mitchell, 5 Abb. Pr. (N. Y. Super. Ct.) 453; Hood v. Hayward (Supreme Ct.) I N. Y. Supp. 566; Redfearn v. Austin, 88 N. Car. 413; Converse v, Michigan Dairy Co., 45 Fed. Rep. 18. " That the plaintiffs are different is prima facie an objection to the plea." Smith v. Blatchford, 2 Ind. 184, 52 Am. Dec. 504. Co-plaintiffs. In Heilbron v. Fow- ler Switch Canal Co., 75 Cal. 426, it was held that the plaintiffs must be entirely the same; and where, being originally the same in the first action, a co-plaintiff was added therein by amendment, a plea in abatement in the second action was overruled. See, however, Ritter v. Worth, 58 N. Y. 627. Davis v. Hunt, 2 Bailey (S. Car.) 412, holds that the plaintiffs must not only be the same, but the same on the record. On this point see the query in Bennett v. Chase, 21 N. H. 570. Plaintiff Not a Party. The second suit will not abate although the plain- tiff therein, not a party to the first suit, might upon application have been ad- mitted as a defendant in the same, and could thereby have litigated the matters involved in the second suit. Loyd v. Reynolds, 29 Ind. 299. See also Parsons v. Greenville, etc., R. Co., i Hughes (U. S.)27g; Fink v. Al- len, 36 N. Y. Super. Ct. 350; and es- pecially Osborn v. Cloud, 23 Iowa 104, 92 Am. Dec. 413. Where Parties Are Reversed. Where the parties are reversed, the plaintiff in one suit being defendant in the other, both suits may be maintained at the same time. Walsworth v. John- son, 41 Cal. 61; Pierce v. Feagans, 39 Fed. Rep. 587; Washburne, etc., Mfg. Co. v. Scutt, 22 Fed. Rep. 710; New England Screw Co.z>. Bliven, 3Blatchf. (U. S.) 240; Colt v. Partridge, 7 Met. (Mass.) 570; Barr v. Chapman, 5 Ohio Cir. Ct. Rep. 69. Contra, Crane v. Larsen, 15 Oregon 349, both cases pending in equity. Compare Danvers v. Dorrity, 14 Abb. Pr. (N. Y. Supreme Ct.) 206. In Actions for Account. In actions for an accounting it is held that both parties are actors, so that the de- fendant cannot subsequently make one of the items of the account the subject of suit by him against the plaintiff. Coubrough v. Adams, 70 758 As a Ground ANOTHER SUIT PENDING. of Abatement. There are, however, several well-established exceptions to this rule, as in gut tarn actions for penalties, 1 actions for breach of official bonds, 2 in certain cases of set-off and counterclaim, 3 and in suits by one of a class 4 or by different plaintiffs in privity of v. Hoag, i Johns. (N. Y.) 283. But this exception is based upon a manda- tory construction of the statute, and does not hold where it is merely per- missive. Tompkins v. Gerry, 43 111. App. 255; unless the matter has been in fact pleaded as a set-off in the former action. Pennsylvania R. Co. v. Davenport, 154 Pa. St. in. And, moreover, to be available as ground of abatement, the set-off must be of a demand against the plaintiff or plaint- iffs alone, and not against him or them together with others. Compton v. Green, 9 How. Pr. (N. Y. Supreme Ct.) 228. Pendency of a suit is no ob- jection to a set-off of the debt upon which the suit is founded in another ac- tion between the same parties. Stroh v. Uhrich, I W. & S. (Pa.) 57. Counterclaims, etc. A pending ac- tion for damages is no bar to a coun- terclaim for the same demand in a suit afterward brought against the plaint- iffs in the first action. Copley Iron Co. v. Pope, 13 Daly (N. Y.) 144, 108 N. Y. 232. A prior action pending on a cause set up in the present action as a counterclaim for which affirmative judgment is demanded is a defense in abatement of the counterclaim. An- sorge v. Kaiser, 22 Abb. N. Cas. (N. Y. Supreme Ct.) 305; distinguishing Nay- lor v. Schenck, 3 E.D. Smith (N.Y.) 135. Plaintiff's action for 300, the unpaid portion of 525 to be paid by defend- ant for certain services, was not barred by the pendency in another court of an action against him by defendant to re- cover the amount paid on the ground of failure of consideration, the sum of $300 remaining not being set up by way of counterclaim, nor put in issue in the suit first brought. Carlin v. Richardson (Super Ct.), i N. Y. Supp. 772. A counterclaim made in a prior ac- tion is pleadable in abatement of an action upon the counterclaim against the plaintiff; and the allowance of a motion upon the hearing of the second action (both causes being in the same court) to withdraw the counterclaim will not defeat the plea in abatement. Demond v. Crary, I Fed. Rep. 480. 4. Suits by One'of a Class. A bill filed by distributees of an estate against the Cal. 374, conceding, however, the gen- eral rule as stated in the text. Ward v. Gore, 37 How. Pr. (N. Y. C. PL) 119, reciprocal actions between part- ners for an accounting. See also the exception in cases of compulsory set- off in note 3, below. 1. In Qui Tarn Actions for Penalties it is held that the first proceeding must abate or bar the second even though the prosecutors be different. Combe v. Pitt, 3 Burr. 1423; Sparry's Case, 5 Coke 61; Sparry's Case, Cro. Eliz. 261; Gilbert History of C. B. 205; Com. v. Churchill, 5 Mass. 174; Bennett v. Chase, 21 N. H. 584; Anderson v. Barry, 2 J. J. Marsh. (Ky.)28i. 2. Actions for Breach of Official Bonds. Where a statute provides that in an action on an official bond by one party, any other person aggrieved may file his suggession and declare for such breaches as he thinks proper, one ac- tion so brought will abate a subse- quent action, the statute being con- strued as mandatory and exclusive. Hartz v. Com., I Grant's Cas. (Pa.) 359; Com. v. Cope, 45 Pa. St. 161; Com. v. Staub, 35 Pa. St. 137. In the absence of such a statute the forego- ing exception does not apply. Com. v. Cope, 45 Pa. St. 165; Treasurer v. Bates, 2 Bailey (S. Car.) 362, holding, however, that when one judgment has been obtained on the bond, all subsist- ing suits will be ordered to be consoli- dated. In Harmon v. McRae, 91 Ala. 401, it was held that an action by a creditor against a sheriff for the simul- taneous levy of attachments in the in- terest of separate creditors (including the plaintiff) against a common debtor might be pleaded in abatement of a second action by another of those cred- itors, the levy being deemed to be for the joint benefit of all. 3. In Cases of Compulsory Set-off. Where the statute of set-off is com- pulsory a plea in abatement that another action had been previously commenced, etc., against the plaintiff in which the matters sued for might beset off is good. Schenck v. Schenck, 10 N. J. L. 276; Slyhoof v. Flitcraft, I Ashm. (Pa.) 171; Lord v. Ostrander, 43 Barb. (N. Y.)33g. See also Douglas 759 As a Ground ANOTHER SUIT PENDING. of Abatement. tkle. 1 Whether a pending attachment may be pleaded by a garnishee therein in abatement of a suit against him for the debt by the original debtor is not settled. 2 Identity of Defendants. But it is not essential that the defendants be entirely the same ; if the actions are based upon substantially the same facts, the first will abate the second, at least as to those defendants who are named in both, although there are more defendants in one action than in the other. 3 administrator to charge him with a devastavit is a good bar to a suit afterwards brought by a creditor for the same devastavit. Green v. Neal, 2 Heisk. (Tenn.) 220, on the ground that the creditor's remedy was by petition in the first suit. The same principle was applied in Groshon v. Lyon, 16 Barb. (N. Y.) 461. One who has made himself a party to a decree on a credi- tor's bill cannot thereafter file a bill on behalf of himself and all others. Row- ley v. Williams, 5 Wis. 151, stating the rule and applying it to a case where a subsequent mortgagee commenced a suit for foreclosure, making a prior mortgagee a party, and the latter came in and answered, setting up his inter- est, and afterward commenced a suit for foreclosure. But it seems that creditors' bills by different creditors will not conflict with each otherwhere one is brought in a state and another in a federal court. Parsons v. Green- ville, etc., R. Co., i Hughes (U. S.)27g. And furthermore, that until there has been a decree in the first authorizing the others to come in and obtain satis- faction, its pendency will not affect a subsequent suit by another plaintiff. Bloodgood v. Bruen, 2 Bradf. (N. Y.) 8; Rogers v. King, 8 Paige (N. Y.) 210. 1. Parties in Privity " If a man in- stitutes a suit and afterwards sells part of the property in question to another, who files an original bill touching the part so purchased by him, a plea of the former suit pending touching the whole property will hold." Story Eq. PI. (ioth ed.) 738; Holloway v. Hollo- way, 103 Mo. 274. See also Gardner v. Clark, 21 N. Y. 399. The same doc- trine is preserved under Code provis- ions, the term "parties" being con- strued to include "privies." Crane v. Larsen, 15 Oregon 349. Where a promissory note was made payable to B., who at the date of its execution was the wife of A., it was held that a suit on the note could not be main- tained by A. as the administrator of B. pending a former suit by him in his in- dividual capacity. Beach v. Norton, 8 Conn. 71. Where a corporation brings a suit on behalf of the company, a stockholder, while such suit is pending, cannot maintain another suit against the same parties grounded on the same cause of action and seeking the same relief. Tippecanoe County v. Lafayette, etc., R. Co., 50 Ind. 118. 2. Pendency of Garnishments. The following cases hold that it is plead- able in abatement; Crawford v. Clute. 7 Ala. 157, 41 Am. Rep. 92; Philadelphia Sav. Bank v. Sinethurst, 2 Miles (Pa.) 439; Brown v. Somerville, 8 Md. 444; but not in bar until judgment and exe- cution, Id. See Irvine v. Lumberman's Bank, 2 W. & S. (Pa.) 190; Adams v. Avery, 2 Pittsb. (Pa.) 77; Navigation Co. v. Navigation Co., 3 Phila. (Pa.) 214; Kase v. Kase, 34 Pa. St. 128; Brown v. Scott, 51 Pa. St. 357; Wilson v. Murphy, 45 Mo. 409. Contra. Hugg v. Brown, 6 Whart. (Pa.) 468; Patterson v. Hankins, 9 Phila. (Pa.) 105; Noble v. Thompson Oil Co., 69 Pa. St. 409; Winthrop v. Carlton, 8 Mass. 456, holding, however, that it is ground for a continuance; Wadleigh v. Pillsbury, 14 N. H. 373. See also Shealy v. Toole, 56 Ga. 210; Wilson v. Rutland, etc., F. Ins. Co., 19 Vt. 177. The fact of issue being joined in an action pending will not per se prevent the defendant from being sum- moned as the trustee of the plaintiff in a process of foreign attachment. Smith v. Barker, 10 Me. 458. 3. Atkinsons. State Bank, 5 Blackf. (Ind.) 85, and Beyersdorf v. Sump, 3*9 Minn. 495, 12 Am. St. Rep. 678, where there were additional defendants in the first suit: Rehman v. New Albany, etc., R. Co. (Ind., 1893), 35 N. E. Rep. 292, where the second contained addi- tional defendants. See also Jennings v. Warnock, 37 Iowa 278; Rogers v. Hoskins, 15 Ga. 273; Wadleigh v. Veazie, 3 Sumn. (U. S.) 165. Compare 760 As a Ground ANOTHER SUIT PENDING. of Abatement. 5. For the Same Cause of Action. The Rule stated. In order to support a plea of another action pen'ding it must appear that the two suits are for the same cause or causes of action. 1 Estes v. Worthington, 30 Fed. Rep. 465. Nor can the effect as an abate- ment be avoided by raising a new question as to a new party in the sec- ond suit along with the old question as to the defendant in both suits. Memphis v. Dean, 8 Wall. (U. S.) 64. 1. Minnesota. Mathews v. Henne- pin County Bank, 44 Minn. 442; Wil- son v. St. Paul, etc., R. Co., 44 Minn. 445; Majerus v. Hoscheid, u Minn. 243- United States. Sharon v. Hill, 22 Fed. Rep. 28; Marshall v. Otto, 59 Fed. Rep. 299; Wheeler v. McCormick, 8 Blatchf. (U. S.) 267; Steiger v. Heidel- berger, 18 Blatchf. (U. S.) 426; Pierce v. Feagans, 39 Fed. Rep. 587; Massa- chusetts Mut. L. Ins. Co. v. Chicago, etc., R. Co., 13 Fed. Rep. 857; Jenkins v. Eldrege, 3 Story (U. S.) 183. New York. Hyatt v. Ingalls, 124 N. Y. 93; Golden v. Metropolitan El. R. Co. (C. PL), 20 N. Y. Supp. 630; Fink -v. Allen, 36 N. Y. Super. Ct. 350; Mandeville v. Avery, 124 N. Y. 376; Raven v. Smith, 24 N. Y. Supp. 601; Hood v. Hayward, I N. Y. Supp. 567; Maloy ^Associated Lace-makers' Co., 8 N. Y. Supp. 815; Hertel v. Van Buren, 3 Edw. Ch. (N. Y.) 20; "Keeler ^. Brooklyn El. R. Co., 9 Abb. N. Cas. {N. Y. Supreme Ct.) 166; Geery v. Webster, n Hun (N. Y.) 428; Com- mercial Bank v. Heilbronner, 52 N. Y. Super. Ct. 388. Missouri. Carroll v. Campbell, no Mo. 557. California. Calaveras County v. Brockway, 30 Cal. 325; Thompson v. Lyon, 14 Cal. 39; Martin v. Splivalo 69 Cal. 611; Larco v. Clements, 36 Cal. 132; Coburn v. Pacific Lumber, etc.. Co., 46 Cal. 32. Georgia. Augusta R. Co. v. Glover . Allen, 85 Va. 721. A writ of assistance and an action for forcible entry and detainer are not for identical relief. Kessinger v. Whittaker, 82 111. 22. The pendency of a common-law action for partition is no objection to a pro- ceeding in the Orphans' Court for par- tition under the statute. Rex v. Rex, 3 S. & R. (Pa.) 533. Nor can the pen- dency of a common-law action by a creditor of a decedent be set up in abatement of proceedings for account in the Orphans' Court. In re Evans's Estate, 3 W. N. C. (Pa.) 519. Although a defendant pleading in abatement pro- duced the record of another suit on a note corresponding in every particular with the note sued on, except in the date of the assignment thereon, the record was held not to support his plea. Thomas v. Thomas, 3 J. J. Marsh. (Ky.) 589. The pendency of an action upon notes will not abate a subsequent action on a foreign judgment obtained upon 761 As a Ground ANOTHER SUIT PENDING. of Abatement. Test of Identity. The identity of the matters involved must be such that a judgment in the first could be pleaded in bar as a former adjudication. 1 the notes. Steers v. Shaw, 53 N. J. L. 353. Parol Evidence of Identity. Parol evidence is admissible in determining whether the first suit is for the same cause of action as the second. Damon v. Denny, 54 Conn. 253. Compare Phelps v. Gee, 29 Hun (N. Y.) 202. 1. Per Shaw, C.J., in Newell v. New- ton, 10 Pick. (Mass.) 470; Vance v. Olinger, 27 Cal. 358, per Sawyer, J. ; Maule v. Murray, 7 T. R. 466; Moore v. Holt, 3 Tenn. Ch. 141; Watson v. Jones, 13 Wall. (U. S.) 679; Hall v. Wallace, 25 Ala. 438. See also Ballou v. Ballou, 26 Vt. 673; State v. North Lincoln St. R. Co., 34 Neb. 634. It must appear that the court would have power to render such a judg- ment. Trimmier v. Hardin, 32 S. Car. 600. Under Code Practice. The test of identity of causes of action under the Codes is the same as that at common law. Kelsey v. Ward, 16 Abb. Pr. (N. Y. Supreme Ct.) 98; Julian v. Pilcher, 2 Duv. (Ky.) 254; Redfearn v. Austin, 88 N. Car. 413. Actions for Instalments. Separate suits for foreclosure may be brought for nonpayment of successive instal- ments of the mortgage debt. Jacobs v. Lewis, 47 Mo. 344. See also Blau- velt v. Powell, 59 Hun (N. Y.) 179, actions for instalments of rent. Subsequent Suit upon a New or Differ- ent Title. An action for divorce on the ground of adultery will not abate a second action for the same relief for alleged adulteries with the same per- son charged to have occurred after the commencement of the first action. Cordier v . Cordier, 26 How. Pr. (N. Y. Supreme Ct.) 187 (Sutherland, J., dissenting). Nor will a libel for divorce from bed and board for desertion abate a subsequent libel for divorce a vinculoon the same ground. Stevens v. Stevens, i Met. (Mass.) 279. A plaintiff may have two suits against the same defendant for the recovery of the possession of the same land pending at the same time, if the second is brought on a title acquired after the commencement of the first, Leonard v. Flynn, 89 Cal. 535; Vance v. Olinger, 27 Cal. 358; Mann v. Rogers, 35 Cal. 318; Larco v. Clements, 36 Cal. 132; Murray v. Green, 64 Cal. 368; or upon a different title, Martin v. Splivalo, 69 Cal. 611; Steele v. Grand Trunk Junction R. Co., 125 111. 385. Villavaso v. Barthet, 39 La. Ann. 247, and Kelsey v. Ward, 16 Abb. Pr. (N. Y. Supreme Ct.) 98, are applications of the same principle. Attachments in Chancery. An attach- ment in chancery obtained in one county and levied upon property not sufficient to pay the debt is no objec- tion to the prosecution of another at- tachment in chancery in another county against other property. Savary v. Taylor, 10 B. Mon. (Ky.)334. Com- pare James v. Dowell, 7 Smed. & M. (Miss.) 333. Attachment Suits and Personal Actions. A pending attachment against a non- resident will not be abated by a pend- ing action by summons in the same court. Stockham v. Boyd (Pa., 1888), 12 All. Rep. 258; Branigan v. Rose, 8 111. 123. Contra, McKinsey v. Ander- son, 4 Dana (Ky.) 62. Nor vice -versa. Morton v. Webb, 7 Vt. 123; Crawford v. Slade, 9 Ala. 887, 44 Am. Dec. 463. After the attachment suit is pursued to judgment and order of sale, but be- fore actual sale, it will abate a per- sonal action unless it be shown that the first proceeding is a failure in whole or in part. Challiss v. Smith, 25 Kan. 563. Splitting of Actions. The pendency of an action upon a part only of an en- tire and indivisible demand is plead- able in abatement of a subsequent action upon the residue. Bender- nagle v. Cocks, 19 Wend. (N. Y.) 207, 32 Am. Dec. 448; Hughes v. Dundee Mortgage Trust Invest. Co., 26 Fed. Rep. 831; O'Beirne v. Lloyd, i Sweeney (N. Y.) 19. As to what constitutes an entire cause of action, see ACTIONS. Upon the kindred subject of the right to maintain a joint action against several, and at the same time a sepa- rate action against each, and the dis- tinctions herein between joint, joint and several, and joint or several lia- bilities, see Blackburn v. Watson, 85 Pa. St 241; Weil v. Guerin, 42 Ohio St. 299, cases of defendant partners; Oneida County Bank v. Bonney, 101 76: As a Ground A NO THER SUIT PENDING. of Abatement. Different Belief. Where the relief obtainable in the two suits is essentially different, they may be prosecuted at the same time, although the same questions may be to some extent involved in both. 1 Formal Differences. But it may be laid down as a general proposi- tion that where the substantial fact or facts upon which the plain- tiff's right to relief is based are identical in the two actions, and the relief obtainable in the first includes all the relief sought in the second action, the first will abate the second, although the actions differ in matters of form, and in the relations of the de- fendant to the infringement of the plaintiff's rights.* N. Y. 173, joint contractors; Graves v. Dale, i T. B. Mon. (Ky.) 191, joint obligors; Turner v. Whitmore, 63 Me. 526, joint and several promisors, dis- approved in Weil v. Guerin, 42 Ohio St. 299; State Bank v. Weller, 3 Pick. (Mass.) 15. 1. Coles v. Yorks, 31 Minn. 213; Mathews v. Hennepin County Sav. Bank, 44 Minn. 442; Colt v. Partridge, 7 Met. (Mass.) 575; Scottish Am. Mortgage Co. v. Follansbee, 9 Biss. (U. S.) 482; Carpenter v. Talbot, 33 Fed. Rep. 537; Pacific Express Co. v. Haven, 41 La. Ann. 811; Ayres v. Bensley, 32 Cal. 620; Pullman v. Alley, 53 N. Y. 637; Haire v. Baker, 5 N. Y. 357; Danvers v. Dorrity, 14 Abb. Pr. (N. Y. Supreme Ct.) 206; Hogg v. Charlton, 25 Pa. St. 200; Wurtz v. Hart, 13 Iowa 515; Savary v. Taylor, 10 B. Mon. (Ky.) 334; Goff v. Welborn (Ky., 1894), 24'S. W. Rep. 871; State v. Dougherty, 45 Mo. 294. An action to quiet title and an action to recover possession of the same land are for different relief, although the same facts are involved. Bolton v. Landers, 27 Cal. 104. Enforcement of Liens or Mortgages and Personal Actions for the Debt. A suit to enforce a lien, and an action for the claim upon which the lien is founded, may be prosecuted at the same time. Raven v. Smith (Supreme Ct.), 24 N. Y. Supp. 601; Gambling v. Haight, 59 N. Y. 354; Gridley v. Rowland, i E. D. Smith (N. Y.) 670; Maxey v. Larkin, 2 E. D. Smith (N. Y.) 540; Pollock v. Ehle, 2 E. D. Smith (N. Y.) 541; Dela- hay v. Clement, 4 111. 201; Black v. Lackey, 2 B. Mon. (Ky.) 257; Julian v. Pilcher, 2 Duv. (Ky.) 254; Peak v. Bull, 8 B. Mon. (Ky.) 428; Heath v. Bates, 70 Ga. 633. See also Thielman v. Carr, 75 111. 385. Likewise a fore- closure suit and an action at law for the debt. Joslin v. Millspaugh, 27 Mich. 517; Spence v. Ins. Co. ,40 Ohio St. 517; Copperthwait v. Dummer, iS N. J. L. 258. But where the statute provides for a personal judgment in a suit to fore- close a lien or mortgage, it precludes a subsequent suit for the debt. Witter v. Neeves, 78 Wis. 547; Ogden v. Bodle,2 Duer (N. Y.) 611. A mortgagee cannot foreclose his . mortgage in a state court after a federal court has acquired jurisdiction over the property in bankruptcy pro- ceedings to which he has made him- self a party, and directed a sale and distribution of the proceeds. Levy v, Haake, 53 Cal. 267. 2. Per Brewer, J., in Mullen v. Mullock, 22 Kan. 598; Ward v. Gore, 37 How. Pr. (N. Y. C. PI.) 119; Daw- ley v. Brown, 65 Barb. (N. Y.) 107; Stone v. Tucker, 12 La. Ann. 726. See also Buffum v. Tiltort, 17 Pick. (Mass.) 510; Allen v. Malcolm, 12 Abb. Pr. N. S. (N. Y. C. PI.) 335; Carr v. Casey, 20 111. 637. A proceeding by attach- ment and another by bail writ cannot stand at the same time. Clark v. Tuggle, 18 Ga. 604. A plea setting forth that an action on a judgment was commenced while the plaintiff in the same judgment was endeavoring to raise the money by execution would be good. Yantis v. Burdett, 3 Mo. 457- Proceedings Growing out of Replevin. A constable levied an execution issued upon a judgment in favor of B. upon certain property as the property of the defendant in execution. M. claimed the property and brought an action of replevin therefor against B. Before the justice, M. obtained judgment for the return of the property, or its value in case a return could not be had. From this judgment B. appealed, and 763 Aa a Ground ANOTHER SUIT PENDING. of Abatement. 6. In the Same Jurisdiction Suits in Foreign Jurisdictions. The doc- trine is well settled that an action in personam in a foreign juris- diction cannot be pleaded in abatement of another action com- menced in a domestic forum, even if there be identity of parties, of subject-matter, and of the relief sought. 1 What Jurisdictions Regarded as Foreign. In the application of this rule the states of the Union are regarded as foreign to one another,' 2 the case was pending in the District Court. M. thereupon commenced an action against the constable and his sureties, of whom B. was one, to re- cover the value of the property. Held, that as to B. the pendency of the first action abated the second. Mullen v. Mullock, 22 Kan. 598. Adequacy of Remedy a Criterion. " It seems to us that if such plea can be sustained when the parties stand in different relations, it can only be so when the first suit affords a full, plain, and adequate remedy to the defen- dant in such suit, and opens all the grounds set up as the foundation of the second suit." Per Dewey, J., in Colt v. Partridge, 7 Met. (Mass.) 570. Where the pending suit is one in which it is legally possible for a judgment to l>e rendered upon the cause of action alleged in the second, and is brought for the purpose of obtaining such judgment, the plaintiff is bound to ex- haust the possibilities of that suit be- fore bringing another. Damon v. Denny, 54 Conn. 253. 1. Mexican Cent. R. Co. v. Char- man (Tex. Civ. App., 1894), 24 S. W. Rep. 958; Lyman v. Brown, 2 Curt. (U. S.) 559; Radford v. Folsom, 14 Fed. Rep. 97; Williams v. Ayrault, 31 Barb. (N. Y.) 364; Bowne v. Joy, 9 Johns. (N. Y.) 221; Maule v. Murray, 7 T. R. 466. See also Bayley v. Edwards, 3 Swanst. 703; McHenry v. Lewis, 22 Ch. Div. 397, affirming 21 Ch. Div. 202; Peruvian Guano Co. v. Bock- woldt, 23 Ch. Div. 225, criticising Cox v. Mitchell, 7 C. B. N. S. 55, 97 E. C. L. 55; Scott v. Lord Seymour, 31 L. J. Exch. 461, and the cases cited in the following notes. 2. Alabama. Humphries v. Dawson, 38 Ala. 199. Arkansas. G'rider v. Apperson, 32 Ark. 332. Connecticut. Hatch v. Spofford, 22 Conn. 496, 58 Am. Dec. 433, overruling Hart v. Granger, I Conn. 154. Delaware. See Howard v. Wilming- ton, etc., R. Co., 2 Harr. (Del.) 471. Georgia. Chattanooga, etc., R. Co. v. Jackson, 86 Ga. 676. Illinois. Mcjilton v. Love, 13 111. 494, 54 Am. Dec. 449; Allen v. Watt, 69 111. 655. Indiana. Bradley -v. State Bank, 20 Ind. 528; Eaton, etc., R. Co. v. Hunt, 20 Ind. 468; De Armond v. Bohn, 12 Ind. 607. Kentucky. Davis v. Morton, 4 Bush (Ky.) 442, 96 Am. Dec. 309; Salmon v. Wooton, 9 Dana (Ky.) 424. Louisiana. Stone v. Vincent, 6 Mar- tin N. S. (La.) 517. Maryland. Seevers v. Clement, 28 Md. 435. See also Cole v. Flitcraft, . 47 Md. 312. Massachusetts. In Colt v. Partridge, 7 Met. (Mass.) 574, it is said that the question has not been decided in Massachusetts. See dictum in Newell v. Newton, 10 Pick. (Mass.) 470. In Moore v. Spiegel, 143 Mass. 413, it was held that the pendency of a suit in another state, if it can be pleaded at all, can be pleaded only in abatement and not in bar. Minnesota. Sandwich Mfg. Co. v. Earl (Minn., 1894), 57 N. W. Rep. 938. New Hampshire. Yelverton v. Conant, 18 N. H. 123; Goodall v. Mar- shall, ii N. H. 99, 35 Am. Dec. 472. New Jersey. Kerr v. Willetts, 48 N. J. L. 78. New York. Bowne v. Joy, 9 Johns. (N. Y.) 221 ; Walsh v. Durkin, 12 Johns. (N. Y.) 99; Cook -v. Litchfield, 5 Sandf. (N. Y.) 330; Williams v. Ayrault, 31 Barb. (N. Y.) 364; Grossman v. Uni- versal Rubber Co. (Super. Ct.), 16 N. Y. Supp. 609 ; Douglass v. Phoenix Ins. Co., 138 N. Y. 218; Lorillard F. Ins. Co. v. Meshural, 7 Robt. (N. Y.) 308; Hadden v. St. Louis, etc., R. Co., 57 How. Pr. (N. Y. Supreme Ct.) 390. See also Oneida County Bank v. Bon- ney, 101 N. Y. 173; Osgood v. Maguire, 61 N. Y. 524, affirming 61 Barb. (N. Y.) 54- North Carolina. Sloan v. McDowell, 75 N. Car. 29; Casey v. Harrison, 2 Dev. (N. Car.) 244 (qucere). 764 As a Ground ANOTHER SUIT PENDING. of Abatement. as are also the courts of a state and a federal court held in an- other state or district. 1 Whether the pendency of a suit in a state or federal court m the same district may be successfully pleaded to the prosecution of a like suit in the other court is a question upon which the authorities are conflicting ; 2 and the effect of a suit pending in a federal court upon a suit subse- quently brought in another federal court seems not to have been determined. 3 7. Garnishments in Foreign Jurisdictions. The pendency of a garnishee process in another state whereby the debt for which an action is subsequently brought in a domestic forum has been attached at the suit of another plaintiff against the plaintiff in the second suit is not generally pleadable in strict abatement of the latter, 4 although it may be good ground for granting a continu- Pennsylvania. Smith v. Lathrop, 44 Mfg. Co. z>. Scutt, 22 Fed. Rep. 710, Pa. St. 326. See also Hogg v. Charl- per Acheson, J. ; Pierce v. Feagans, 39 ton, 25 Pa. St. 200; Ralph v. Brown, 3 Fed. Rep. 587, per Thayer, J. ; Sharon W. & S. (Pa.) 395. Contra, Hopkins v. v. Hill, 22 Fed. Rep. 28, per Sawyer, J. ; Ludlow, i Phila. (Pa.) 272. Latham v. Chafee, 7 Fed. Rep. 520, Texas. Drake v. Brander, 8 Tex. per Colt, D.J. ; Hughes v. Elsher, S 352. See also Mexican Cent. R. Co. Fed. Rep. 263, per Lowell, C.J. ; v. Charman (Tex. Civ. App., 1894), 24 Brooks v. Mills County, 4 Dill. (U. S.) S. W. Rep. 958. 524 (quare), per Love, J. ; Oneida. The Rule not Changed by Code Provi- County Bank v. Herrenden, 3 How. ions. Code provisions for pleading Pr. N. S. (N. Y. Ct. of App.) 446. the pendency of another suit are not Contra. Nelson v. Foster, 5 Biss. construed as modifying the former (U. S.) 44, per Miller, J.; Radford rule, and are confined to suits pend- v. Folsom, 14 Fed. Rep. 97, per Shiras, ing in the same state. Burrows v. D.J.; Smith v. Atlantic Mut. F. Ins. Miller, 5 How. Pr. (N. Y. Supreme Co., 22 N. H. 21, per Perley, J. See Ct.), 51; Cook -v. Litchfield, 5 Sandf. also Earl v. Raymond, 4 McLean (U. (N. Y.) 330; Oneida County Bank v. S.) 233; Ex p. Balch, 3 McLean (U. S.} Bonney, 101 N. Y. 173; De Armond v. 221; Loyd v. Reynolds, 29 Ind. 299, Bohn, 12 Ind. 607; Davis v. Morton, 4 where the court did not find it neces- Bush (Ky.) 442, 96 Am. Dec. 309; sary to decide the point. Sloan v. McDowell, 75 N. Car. 29. 3. In Wheeler v. McCormick. 8 1. Marshall v. Otto, 59 Fed. Rep. Blatchf. (U. S.) 267, a suit pending in 249; Briggs v. Stroud, 58 Fed. Rep. another federal Circuit Court was 717; White -v. Whitman, i Curt. (U. S.) pleaded in abatement, but overruled 494; Loring v. Marsh, 2 Cliff. (U. S.) because it appeared that the remedy 311 ; Crescent City Live-Stock, etc., in the former suit was not sufficiently Co. v. Butchers' Union Live-Stock, complete and effectual. So in Steiger etc., Co., 12 Fed. Rep. 225; -Rawitzer v. Heidelberger, 4 Fed. Rep. 455, the v. Wyatt, 40 Fed. Rep. 609; Stanton v, court overruled a like plea in abate- Embrey, 93 U. S. 548; Mutual L. Ins. ment, holding that bill for infringe- Co. v. Harris, 96 U. S. 592; Walsh v. ment and account of profits against an Durkin, 12 Johns. (N. Y.) 99, distin- employer was not abatable by the guishing Imlay v. Ellefsen, 2 East 453; pendency in another Circuit Court of a Mitchell v. Bunch, 2 Paige (N. Y.) 606, bill for injunction and account against 22 Am. Dec. 669; Parsons v. Green- the employer, the parties and relief ville, etc., R. Co., I Hughes (U. S.) being different. See also Mass. Mut. 279. See also Wadleigh v. Veazie, 3 L. Ins. Co. v. Chicago, etc., R. Co., 13 Sumn. (U. S.) 165; Dwight v. Central Fed. Rep. 857. Vt. R. Co., 9 Fed. Rep. 785; Wood v. 4. Lynch v. Hartford F. Ins. Co., Lake, 13 Wis. 84. 17 Fed. Rep. 627; Cole v. Flitcraft, 47 2. That it is not a ground of abate- Md. 312. See also Lewis v. Higgins, ment. see Gordon v. Gilfoil, 99 U. S. 52 Md. 614; New England Screw Co. 168, per Bradley, J. ; Washburn, etc., v. Bliven, 3 Blatchf. (U. S.) 240. In 765 As a Ground ANOTHER SUIT PENDING. of Abatement. ance. 1 8. Where the Former Suit is Defective. Where the court in which the former suit is pending has no jurisdiction of the subject- matter, 2 or the suit or proceeding is otherwise so defective as to Lynch v. Hartford F. Ins. Co., 17 Fed. Rep. 627, quoted in the following note, the weight of authority is declared to be as stated in the text. Contra. Embree v. Hanna, 5 Johns. (N. Y). 101; Douglass v. Phoenix Ins. Co., 138 N. Y. 209, overruling the an- swer, however, for want of sufficient allegations; O'Neil v. Nagle, 14 Daly (N. Y.) 492. See also Donovan z'.Hunt, 7 Abb. Pr. (N. Y. Supreme Ct.) 29. Compare Gould v. Chicago, etc., R. Co. (Supreme Ct.), 10 N. Y. St. Rep. 921. But it must appear that the foreign court had acquired jurisdiction under its laws. Douglass v. Phoenix Ins. Co., 138 N. Y. 209; Missouri Pac. R. Co. v. Sharitt, 43 Kan. 375, 19 Am. St. Rep. 143. Pleading. And it has been held that the pleading must allege the statute by authority of which the attachment was issued, and exhibit the proceed- ings at large, that it may be seen that the right to attach the debt existed, and that the law has been strictly pursued. Sargent v. Sargent Granite Co. (Com. PL), 26 N. Y. Supp. 737; in connection with which see Williams v. Ingersoll, 89 N. Y. 508. For the form of a common-law plea in abatement of a foreign attachment pending, see Wheeler v. Raymond, 8 Cow. (N. Y.) 315, n. Attachments in Other States. Further- more, that the pendency of an action aided by attachment in the court of another state is not pleadable in abate- ment of an action in New York by the same plaintiff for the same cause against the same defendant, see Sar- gent v. Sargent Granite Co. (C. PL), 26 N. Y. Supp. 737, reversing 23 N. Y. Supp. 886; Osgoodz/. Maguire, 61 N. Y. 524, affirming 61 Barb. (N.Y.) 54; Nason Mfg. Co. v. Rankin Ice Mfg. Co., i Rob. C. C. (N. Y.) 455; Hecker v. Mitchell, 5 Abb. Pr. (N. Y. Super. Ct.) 453; Buffalo Coal Co. v. Rochester, etc., R. Co., 8 W. N. C. (Pa.) 126; Par- sons v. Columbia Ins. Co., 2 Phila. (Pa.) 21. See Lawrence v. Reming- ton, 6 Biss. (U. S.) 44; Noble v. Thompson Oil Co., 69 Pa. St. 409; Wilson v. Mechanics' Sav. Bank, 45 Pa. St. 488. Contrary Authorities. Baltimore v. May, 25 Ohio St. 347, holds that the foreign garnishment is a good defense. Likewise German Bank v. American F. Ins. Co., 83 Iowa. 491. And Har- vey v. Great Northern R. Co., 50 Minn. 405, states that the majority of the courts sustain the same rule, the court granting a continuance, however, in that case. See also Lowry v. Hall, 2 W. & S. (Pa.) 129, 38 Am. Dec. 495. 1. Harvey v. Great Northern R. Co., 50 Minn. 405. See also Chatzelz'. Bolton, 3 McCord (S. Car.) 28. Summary Statement. "The courts when called upon to decide this ques- tion have uniformly held that a cred- itor ought to be at liberty to secure himself by action against his debtor, who may be apt to become insolvent or abscond, or who may be in collu- sion with the foreign plaintiff, not- withstanding the earlier foreign at- tachment, and that the only protec- tion which the defendant can require is to have a continuance of the action or a moulding of the judgment in such a form that he should not be obliged to pay the same debt twice. This I understand to be the decided law of Massachusetts, Alabama, California, New Hampshire, Vermont, Georgia, In- diana, and Louisiana. Winthrop v. Carlton, 8 Mass. 456; Crawford v. Slade, 9 Ala. 887, 44 Am. Dec. 463; McFadden v. O'Donnell, 18 Cal. 160; McKeon v. McDermott, 22 Cal. 667, 83 Am. Dec. 86; Wadleigh v. Pillsbury, 14 N. H. 373; Drew v. Towle, 27 N. H. 412; Hicks v. Gleason, 20 Vt. 139; Shealy v. Toole, 56 Ga. 610; Smith v. Blatchford. 2 Ind. 183, 52 Am. Dec. 504; Carroll v. McDonogh, 10 Martin (La.) 609." Per Lowell, J., in Lynch v. Hartford F. Ins. Co., 17 Fed. Rep. 627. 2. Rood v. Eslava, 17 Ala. 430; Ernst v. Hogue, 86 Ala. 502; Phillips v. Quick, 68 111. 324; Stroh v. Uhrich, i W. & S. (Pa ) 57. See also Havi- land v. Wehle, n Abb. Pr. N. S. (N. Y. C. PI.) 449- Where Want of Jurisdiction is Not Ob- vious. In Merriam v. Baker, 9 Minn. 40 (Flandrau, J., dissenting), it was held that if the court where an action is 766 As a Ground for ANOTHER SUIT PENDING. Continuance or Stay. be ineffectual, its pendency will not abate a second suit between the same parties for the same cause of action. 1 But the acci- dental destruction of the papers in a suit does not authorize the bringing of a new suit. 2 II. As A GBOTJND FOE CONTINUANCE OB STAY 1. Continuance- Garnishment of Defendant. It is a proper ground for continuance that the debt for which the suit is brought has been attached in a prior and pending action in the same or in another state by a creditor of the plaintiff. 3 Appeal Pending. So where an appeal is pending, a judgment in which will operate as an estoppel upon the plaintiff in the second suit. 4 commenced has authority to determine actions of that class or character, such action will be deemed to be pending therein, notwithstanding the existence of a question as to whether the court acquired jurisdiction of the parties or the particular case, so long as the quest on remains undecided and until the court decides against its jurisdic- tion. 1. Rogers v. Hoskins, 15 Ga. 270; Heath v. Bates, 70 Ga. 633. The language of the court in the Georgia cases is that "where the former ac- tion is so defective that no recovery can possiby be had," etc., " the second action will not abate." Reynolds v. Harris, 9 Cal. 338, where the former suit was so radically defective that a judgment rendered therein would have been a nullity. See also Ward V. Curtiss, 18 Conn. 290. Void Process. Minniece v. Jeter, 65 Ala. 222, where the process by which the original action was com- menced was issued by an unauthor- ized person. Invalid Attachment. In an early case in Connecticut, where property may be attached upon mesne process, an at- tachment not legally served so as to hold the estate taken thereby was held not to abate a second action. Durand v. Carrington, i Root (Conn.) 355- Married Woman Suing Alone. Where a feme covert instituted a suit with- out right or authority, a second suit properly brought was held not to be abatable. Langham v. Thomason, 5 Tex. 127. Suit in Erroneous Representative Char- acter. An administrator suing as the representative of the wrong party is not precluded during the pendency of the suit from bringing another suit as the representative of the right party. Cornelius w.Vanarsdallen, 3 Pa. St. 434. Defective Writ of Error. Quinebaug Bank v. Tarbox, 20 Conn. 510, where a writ of error, ineffectual by reason of the omission of the court to allow and sign a bill of exceptions as therein stated, was abandoned and a new writ of error brought and sustained. Amendable Defects in Pleading. A suit is not defective because of a mis- joinder of counts in the declaration, where the defect can be remedied by amendment. Prosser -v. Chapman, 29 Conn. 515. Omission to Serve a Party. The first suit is not a mere nullity, although one of the defendants resided out of the ju- risdiction and was not served. White v. Smith, 4 Hill (N. Y.) 166. Misjoinder of Defendants. Nor does a mere misjoinder of defendants in the former suit render it ineffectual. Atkin- son v. State Bank, 5 Blackf. (Ind.) 85. 2. The lost record should be sup- plied. Tolle v. Alley (Ky., 1893), 24 S. W. Rep. 113, where the second suit was abated. 3. Winthrop v. Carlton, 8 Mass. 456; Harvey v. Great Northern R. Co., 50 Minn. 405, where it was said to make no difference that the garnishee pro- cess was subsequent instead of prior. Blair v. Hilgedick, 45 Minn. 23; Lynch v. Hartford F. Ins. Co., 17 Fed. Rep. 627; Douglass v. Phoenix Ins. Co., 138 N. Y. 218; Smith v. Barker, 10 Me. 458; McCarthy v. Peake, 9 Abb. Pr. (N. Y. Supreme Ct.) 164. But the case should proceed until the rights of the parties are ascertained. Wilson v. Rutland, etc., Ins. Co., 19 Vt. 177. 4. Standard Imp. Co. v. Stevens, 51 Kan. 530; Willard v. Ostrander, 51 Kan. 481. See also Chatzel v. Bokon, 3 McCord (S. Car.) 28. 767 As a Ground for ANOTHER SUIT PENDING. Continuance or Stay: Cross-Actions. Where cross-actions are pending, either of them may be continued on the defendant's motion until he shall obtaia judgment in his action. 1 Concurrent Attachments. Where the same land is attached by several creditors, the subsequent attaching creditors may continue their actions until the actions on which the prior attachments were issued are determined. * Appeal Between Other Parties. A continuance will not be granted because an appeal is pending in another suit between one of the parties and third persons which, it is alleged, will determine the questions raised in the present suit. 3 Suit in Equity. Nor by reason of the pendency of a suit in equity for the same matter, where a plea of such suit would not avail in abatement. 4 2. Stay of Proceedings in General. In order to authorize any court to stay proceedings on account of a suit pending in another court, the two proceedings must be practically identical. 5 1. Adams v. Manning, 17 Mass. 178; Winslow v. Hathaway, I Pick. (Mass.) 211; Goodenow v. Buttrick,-7 Mass. 140. Where the object of two legal proceedings is the same, the proceed- ings should be continued where pro- cess was first served. Schuehle v. Reiman, 86 N. Y. 270; and this al- though the second action was com- menced without notice of the pendency of the first. Kimball v. Mapes, 19 N. Y. Wkly. Dig. 481. 2. Barnard v. Fisher, 7 Mass. 71; Hoyt v. Gelston, 8 Johns. (N. Y.) 179. 3. Gates v. Mayes (Tex., 1889), 12 S. W Rep. 51. Nor because an ap- peal has been taken in another case between the same parties. Peters v. Banta, 120 Ind. 416; intimating that a stay of proceedings might be granted; on which point see also Bryan v. Scholl, 109 Ind. 369. In the Federal Courts. Although the federal courts follow the construction of the statutes and constitution adopted by the courts of a state wherein they sit, yet when a suit in equity in a fed- eral court involving such a construc- tion has been set for hearing, the court will not on motion of a party postpone the trial to await the deci- sion of the Supreme Court of the State in a suit pending before it and alleged to involve the same question, where it is not clear that the precise point will be determined in the latter suit, and it is uncertain when it will come on for adjudication. Detroit v. Detroit City R. Co., 55 Fed. Rep. 571. But if the same question be at issue in another suit pending in the United States Supreme Court, a Circuit Court will continue the cause in the absence of special reasons to the contrary. Friedman v. Harrington, 56 Fed. Rep. 860. 4. Davis v. Hunt, 2 Bailey (S. Car.) 412; Loring v. Marsh, 2 Cliff. (U. S.) 311. As a ground for abatement, see I, I, a, supra. Suits at Law and Equity in Same Court. Where both an action at law and a proceeding in chancery between the same parties and about the same sub- ject-matter are pending in the same court, it is not an improper exercise of discretion to postpone the trial of that suit which depended upon strict legal right, until those equities which the defendant had been compelled to set up in a separate action could be heard and determined. In case of such postponement, however, the de- fendant should be required to prose- cute his suit in equity with diligence; and when he fails in this respect, the action at law may properly be tried. Purington v. Frank, 2 Iowa 565- 5. Proceedings in an action at law in a state court will not be stayed on ac- count of a pending proceeding in rent in admiralty. People v. Judges, 27 Mich. 406, 15 Am. Rep. 195, where Campbell, J., collates the follow- ing authorities in support of the general principle: The Kalorama, 10 Wall. (U. S.) 204; Toby v. Brown, n Ark. 308; Harmer v. Bell (The Bold Buccleugh), 22 Eng. L. & Eq. 62; The 768 As a Ground for ANOTHER SUIT PENDING. Continuance or Stay. Pendency of Writ of Error. A suit may be stayed to await the decision on a writ of error sued out during its pendency from a judgment in a prior suit between the same parties for the same matter. 1 Bengal, Swabey 469; The John & Mary, Swabey 471; Nelson v. Couch, 15 C. B. N. S. 99, 109 E. C. L. 99; Sowter v. Dunston, I M. & R. 508, 17 E. C. L. 269; Wise v. Prowse, 9 Price 393; Henry v. Nash, i Exch. 826; Giles v. Tooth, 3 C. B. 665, 54 E. C. L. 665; Newton v. .Belcher, 9 Q. B. 612, 58 E. C. L. 611; Newton v. Liddiard, 9 Q. B. 616, 58 E. C. L. 616; Great Northern R. Co. v. Kennedy, 4 Exch. 417; Inglis v. Great Northern R. Co., 16 Eng. L. & Eq. 55; Coving- ton v. Hogarth, 7 M. &. G. 1013, 49 E. C. L. ion; Wade v. Simeon, i C. B. 610, 50 E. C. L. 610; Ostell v. Le Page, 21 Eng. L. & Eq. 640; Miles -v. Bristol, 3 B. & Ad. 945, 23 E. C. L. 22; Dicas v. Jay, 6 Bing. 519, 19 E. C. L. 155; Davis v. Salter, 2 C. & M. 466; Mur- phy v. Cadel, 2 Bos. & P. 137; Smidt v. Ogle, 6 Taunt. 74; Laughtonw. Taylor, 6 M. &. W. 695; The Ann & Mary, 2 W. Rob. 189; General Steam Nav. Co. v. Tonkin, 4 Moore 321. To the same point see Smith v. College of St. Francis Xavier (Super. Ct.), 20 N. Y. Supp. 533; Ludeke z/. McKeever (Su- preme Ct.), 9 N. Y. St. Rep. 827; Au- burn City Bank v. Leonard, 20 How. Pr. (N. Y. Supreme Ct.) 193; People v. Northern R. Co., 53 Barb. (N. Y.) 98; Carlisle v. Cooper, 18 N. J. Eq. 241; Mercantile Trust Co. v. Lamoille Val- ley R. Co., 16 Blatchf. (U. S.)324; Con- verse v. Michigan Dairy Co., 45 Fed. Rep. 18. The question is considered in Hurd v. Moiles, 28 Fed. Rep. 897, and the rule is stated in terms more favorable to a stay. See Estes v. Worthington, 30 Fed. Rep. 465; San- ford v. Cloud, 17 Fla. 532; Avery v. Contra Costa County, 57 Cal. 247; Dunphy v. Belden, 57 Cal. 427; Law- rence v. Hale, 24 N. J. L. 43; Adam- son v. Tuff, 44 L. T. N. S. 420; Murphy v. Cadell, 2 Bos. & P. 137. Extent of Discretion. Where several actions are brought for the same cause, proceedings may be stayed in all but one. Jones v. Pritchard, 6 D. &. L. 529, 18 L. J. Q. B. 104; Sowter v. Dun- ston, i M. & R. 508, 17 E. C. L. 269; Came v. Legh, 6 B. & C. 124, 9 D. & R. 126, 13 E. C. L. 118; Burlingame v. Parce, 12 Hun (N. Y.) 149; Flanagan v. Flanagan (Supreme Ct.), 13 N. Y. St. Rep. 432; Cushman v. Leland, 93 N. Y. 652; Brown v. May, 17 Abb. N. Cas. (N. Y. Supreme Ct.) 205; Parma- lee v. Wheeler, 32 Wis. 429; Orville, etc., R. Co. v. Plumas County, 37 Cal. 354. Or in all until plaintiff elects ta discontinue in all but one. Ham- mond v. Baker, 3 Sandf. (N. Y.) 704; Litchfield v. Smith, 7 Robt. N. Y. 306. And this may be done where the plaintiff of record is not the same in all, if they are under the control of one person and for his benefit. Soule v. Corning, n Paige (N. Y.)4i2; Mari- posa Co. -v. Garrison, 26 How. Pr. (N. Y. Supreme Ct.) 448; McFarlan v. Clark, 2.Sandf. (N. Y.) 699. Where several actions are pending, the court has no power to compel the parties to be bound by the result of the trial of one of them. Doyle v. Ander- son, i Ad. & El. 635, 28 E. C. L. 169; Rex v. Cousins, 7 Ad. & El. 285, 34 E. C. L. 92; McGregor v. Horsfall, 3 M. & W. 320; Sherman v. McNitt, 4 Cow. (N. Y.) 85. Compare Jackson . . Schauber, 4 Cow. (N. Y.) 78. In Case of Defective Answer in Abate- ment. Where the answer shows the pendency of another suit, but does not properly plead the necessary facts, it is error to allow the two cases to proceed independently of each other. The latter should be stayed until the determination of the former, or the two cases should be consolidated and tried together. Crane v. Larsen, 15 Oregon 345, a suit in equity where another suit in equity was pending. See also Parmelee v. Tennessee, etc., R. Co., 13 Lea (Tenn.) 600. 1. Scott v. Herald, 8 Blackf. (Ind.) 129; Hailman v. Buckmaster, 8 111. 498, citing Christie v. Richardson, 3 T. R. 78; Myer v. Arthur, i Stra. 419; Cressy z/. Kell, i Wils. 120. See also Porter v. Kingsbury, 77 N. Y. 165; Waring v. Yale, i Hun (N. Y.) 492; Brady v. New York (Super. Ct.), 5 N. Y. Supp. 181; Den v. Fen, 17 N. J. L. 354- Stipulation to abide the event of an appeal in another case operates as a stay. Murphy v. Keyes, 2 Hun (N.Y.) 375- i Encyc. PI. & Pr. 49. 769 Taking the ANOTHER SUIT PENDING. Objection. Pendency of Garnisnment. Where the defendant in an action is garnisheed by a creditor of the plaintiff, the proper practice is for the court in which the action is pending to grant a stay of proceedings in the action before judgment; or if judgment is entered, to stay execution as to the whole or part thereof until the garnishment proceedings are disposed of. 1 Suit in Foreign Jurisdiction. The court may, in its discretion, stay proceedings on account of the pendency of another action in a foreign jurisdiction between the same parties involving the same matter. 2 In Equity. Where two or more suits are instituted in equity on behalf of an infant for the same matter, the court will, upon repre- sentation of the fact, direct an inquiry as to which suit is most for the infant's benefit, and when that point is ascertained will stay proceedings in the other suits. 3 And after a decree for an account in a suit by creditors against an executor or administrator, the court will, upon motion of the defendant, stay proceedings in a subsequent suit by other creditors. 4 IIL TAKING THE OBJECTION 1. At Common Law a. OBJECTION, How TAKEN. The pendency of a former action merely defeats the present proceeding and must ordinarily be pleaded in abatement, 5 iell Ch. Pr. (sth ed.) 70; Staniland v. Staniland, M. R. 21 Jan. 1864. See Frost v. Ward, 12 W. R. 285, 2 DeG., J. & S. 70. 4. i Daniell Ch. Pr. (sth ed.) 635. 5. Stephens v. Monongahela Bank, in U. S. 197, holding also in accord- ance with the provisions of ion U. S. Rev. Sts. that the decision of the court on the plea is not subject to review. Morton v. Sweetser, 12 Allen (Mass.) 135; Percival v. Rickey, 18 Johns. (N. Y.) 257, 9 Am. Dec. 210; Moore v. Spiegel, 143 Mass. 413; Bank of U. S. v. Merchants' Bank, 7 Gill (Md.)4is; Kempton v. Sullivan Sav. Inst., 53 N. H. 581; Harris v. Johnson, 65 N. Car. 478; and cases in the following notes. It cannot be taken advantage of by motion to dismiss. Morton v. Sweetser, 12 Allen (Mass.) 135. And cannot be pleaded under leave of the court to plead double. Davis v. Grain- ger, 3 Johns. (N. Y.)258. Where de- fendants are sued jointly one alone cannot plead in abatement of the whole suit. DeForest v. Jewett, i Hall (N. Y.) 137- In In re Linn's Estate, 2 Pearson (Pa.) 487, it was held that as there are no written pleadings in the Orphans' Court, an objection of another suit pending may be taken therein ore tenus. 1. Blair v. Hildedick, 45 Minn. 23; Shealy v. Toole, 56 Ga. 210; Harvey v. Great Northern R. Co., 50 Minn. 405; Crawford v. Clute, 7 Ala. 157, 41 Am. Dec. 92; Drake on Attachment (6th ed.) 701; McFadden v. O'Don- nell, 18 Cal. 160; Pierson v, McCahill, 21 Cal. 123; McKeon v. McDermott, 22 Cal. 667, 83 Am. Dec. 86; Hixon v. Schooley, 26 N. J. L. 461. See Barker v. Haskell, 9 Cush. (Mass.) 218; Blumenthal v. Taylor, 44 111. App. 139; Wood v. Lake, 13 Wis. 84. 2. McHenry v. Lewis, 22 Ch. Div. 397, affirming 21 Ch. Div. 202; Peru- vian Guano Co. v. Bockwoldt, 23 Ch. Div. 225, criticising Cox v. Mitchell, 7 C. B. N. S. 55, 97 E. C. L. 55; Par- malee ^.Wheeler, 32 Wis. 429; Kerrz'. Willetts, 48 N. J. L. 78; Lewis v. Hig- gins, 52 Md. 614; Bell v. Donohue, 47 N. Y. Super. Ct. 458. Contra, dictum in Cole -v. Flitcraft, 47 Md. 316. Review of Discretion on Appeal. In People v. Northern R. Co., 53 Barb. (N. Y.) 98, it was held that in so far as the question is addressed to the discre- tion of the court, the decision at special term cannot be overhauled on appeal. 3. i Daniell Ch. Pr. (sth ed.)6g; Mor- timer v. West, i Swanst. 358. Under special circumstances the court may make an order upon motion and notice without directing an inquiry. I Dan- 770 Taking the ANOTHER SUIT PENDING. Object) Jn. and not in bar, 1 and is not admissible in evidence under the general issue. 5 * b. AT WHAT STAGE OF PROCEEDINGS. The plea in abatement cannot be filed after pleading to the merits of the action. 3 c. REQUISITES OF THE PLEA. The greatest strictness and ac- curacy are required in a plea of this kind. 4 It must be certain to every intent, 5 not argumentative,* 1 and free from duplicity 7 or repugnancy. 8 The plea must state in what court the prior action is pending, 9 and refer to the record thereof, the usual formulary being " as by the record thereof remaining in said court appears ;" 1O 1. Morton v. Sweetser, 12 Allen (Mass.) 135 ; Sullings z/. Goodyear Dental Vulcanite Co., 36 Mich. 313; Jenkins ->. Pepoon, 2 Johns. Cas. (N. Y.) 312; Near v. Mitchell, 23 Mich. 382, where the prior suit was a garnishee process; Moore v. Spiegel, 143 Mass. 413; Mattel v. Conant, 156 Mass. 418; Findlay v. Keim, 62 Pa. St. 112. Qui Tarn Actions. The rule is dif- ferent in the case of qui tarn actions for penalties where the property in the thing in action is vested in the person who first sues for it, and that suit may be pleaded in bar of a second. Engle v. Nelson, I P. & W. (Pa.) 442; Morton v. Sweetser, 12 Allen (Mass.) 137; Anderson v. Barry, 2 J. J. Marsh. (Ky.) 281. See also Com. v. Cope, 45 Pa. St. 161; Derham v. Berry, 5 Phila. (Pa.) 475- 2. Smock v. Graham, i Blackf. (Ind.) 314; Percival v. Hickey, 18 Johns, (N. Y.) 257, 9 Am. Dec. 210; Near v. Mitchell, 23 Mich. 382; Will- iamson v. Paxton, 18 Gratt. (Va.) 504; Sherwood v. Hammond, 4 Blackf. (Ind.) 504. See also Gregory v. Kenyon, 34 Neb. 640. 3. Hartz v. Com., i Grant's Cas. (Pa.) 359; Engle v. Nelson, i P. & W. (Pa.) 442; Com. v. Cope, 45 Pa. St. 164; Morton v. Sweetser, 12 Allen (Mass.) 137; Drake v. Brander, 8 Tex. 352; Maxwell v. First Nat. Bank (Tex. Civ. App., 1894), 24 S. W. Rep. 848. See also People v. Smith, 65 Mich, i; Tra- wick v. Martin Brown Co., 74 Tex. 522. See ABATEMENT IN PLEADING, ante, p. i. General or Special Imparlance. It cannot be pleaded after a general im- parlance, but may be after a special imparlance. Coates v. McCarney, 2 Browne (Pa.) 173; Ralph v. Brown, 3 W. & S. (Pa.) 395; M'Carney v. Me Camp, i Ashm. (Pa.) 4, holding that a plea in abatement filed out of time may be treated as a nullity. After Removal of Action. In Colt v. Partridge, 7 Met. (Mass.) 570, it was held that the defendant may plead in abatement in the supreme judicial court after removing an action into that court pursuant to Mass. Sts. 1840, c - 87, 3. Colt v. Partridge, 7 Met. (Mass.) 570. 4. Severy v. Nye, 58 Me. 246; Ballou v. Ballou, 26 Vt. 673; Thompson v. Lyon, 14 Cal. 39. Defect in form may be taken advantage of by general de- murrer. Clifford v. Cony, i Mass. 495- 5. Severy v. Nye, 58 Me. 246; Wales v. Jones, i Mich. 254. 6. Severy v. Nye, 58 Me. 246, hold- ing that such a defect may be reached by general demurrer. 7. Wadleigh v. Pillsbury, 14 N. H. 373- 8. Bigelow v. Farmer, 5 Blackf. (Ind.) 31. 9. Bullock v. Bolles, 9 R. I. 501. See also Berger v. Moessinger, 5 Ohio Cir. Ct. Rep. 432; Miller v. Rigney, 16 Ind. 327. The name and style of the court are indispensable. Fahy v. Brannagan, 56 Me. 44, holding that a plea of a pending statute submission of all demands must not only set out the name of the referee, but allege his acceptance. 10. Bullock v. Bolles, 9 R. I. 501; Clifford v. Cony, i Mass. 494; Com. v. Churchill, 5 Mass. 174. Bale in New Hampshire. "If both ac- tions were pending in the same court, it was sufficient for the plea to state that the parties and cause of action were the same, and to refer the court to their own record; and the trial in such case was by inspection of the record and not by proof aliunde. The plaintiff was entitled to oyer of the record remaining in the court. Theo- balds v. Langs, Ld. Raym. 847; Cremer v. Wickett, Ld. Raym. 550; Bond v. Barnes, 3 Ld. Raym. 77. If the prior 771 Taking the ANOTHER SUIT PENDING. Objection. and it must aver that the action is still pending, 1 and show that both suits are for the same cause and matter, 2 and that the court wherein the former suit is pending has jurisdiction thereof. 3 The plea must conclude with a prayer of judgment of the writ, 4 and should be verified by affidavit. 5 See ABATEMENT IN PLEADING, ante, p. i. d. PROCEEDINGS SUBSEQUENT TO PLEA Demurrer. If the plea is insufficient in form or substance, the proper course is to demur. 6 Replication. The only replication to the plea is that of mil tiel record." 1 action was pending in another court, to furnish means of determining the truth of the plea by inspection, the rule of pleading requires that the plea should set out the record in the prior action literally sub pede sigilli. Carwen v. Fletcher, I Stra. 520; Petre v. Uni- versity of Cambridge, 3 Lev. 332." Per Perley, J. , in Smith v. Atlantic Mut. F. Ins. Co., 22 N. H. 25, followed in Ladd v. Stratton, 59 N. H. 200. In Connecticut it seems that the same practice obtains, Beach v. Norton, 8 Conn. 71; and certainly in Maine, Fahy v. Brannagan, 56 Me. 42; Turner v. Whitmore, 63 Me. 526; Brastow v. Barrett, 82 Me. 166. New Jersey. In Trenton Bank v. Wallace, 9 N. J. L. 83, it was held that an exemplification of the record sub pede sigilli, duly authenticated, must accompany the plea and be filed therewith as matter of evidence. 1. I, 3, supra; Wales v. Jones, i Mich. 254; Pew v. Yoare, 12 Mich. 16. But see Lee v. Hefley, 21 Ind. 98. Evidence of Pendency. The pendency of a prior action can only be proved by record evidence. Smith v. Ricketts, Liv. Opin. (N. Y.) 27; Smiley v. Dewey, 17 Ohio 156; Wright v. Maseras, 56 Barb. (N. Y.) 521. See Bond v. White, 24 Kan. 45; Craig v. Smith, 10 Colo. 220; Hixon v. Schooley, 26 N. J. L. 461. 2. I, 5, supra; Tracy v. Reed, 4 Blackf. (Ind.) 56; Calaveras County v. Brockway, 30 Cal. 325 ; Llano Imp., etc., Co. v. Cross, 5 Tex. Civ. App. 175; Bourland v. Nixon, 27 Ark. 315- On plea in abatement to the entire action, if the proof shows that the first suit is only for part of the matter sued for in the second suit, the plea fails. Thompson v. Lyon, 14 Cal. 39. 3. Ex p, Balch, 3 McLean (U. S.) 221; White v. Whitman, I Curt. (U. S.) 494. But see Newell v. Newton, 10 Pick. (Mass.) 470. 4. Fahy v. Brannagan, 56 Me. 42; Yelverton v. Conant, 18 N.'H. 123; Clark v. Brown, 6 N. H. 434. A prayer that it may be quashed, with- out praying judgment, is bad. Hazzard v. Haskell, 27 Me. 549; Crawford v. Slade, 9 Ala. 892, holding the defect fatal on demurrer. A plea which be- gan by praying judgment of the writ and declaration and ended with a prayer for judgment of the writ only was held good on demurrer. Buckles v. Harlan, 54 111. 361. 5. Hall v. Wallace, 25 Ala. 438, holding the want of affidavit fatal on demurrer. See also Trenton Bank v. Wallace. 9 N. J. L. 83; Whiter. Whit man, I Curt. (U. S.)494. Contra, Smith v. Atlantic Mut. F. Ins. Co., 22 N.H. 25. Want of Verification cannot be taken advantage of by demurrer. Buchanan v. Logansport, etc., R. Co., 71 Ind. 265. Nor, it seems, will an objection be entertained for the first time after the jury are sworn. Wilson v. Poole, 33 Ind. 443. 6. Ralph v. Brown, 3 W. & S. (Pa.) 395; Pittsburg, etc., R. Co. v. Mt. Pleasant, etc., R. Co., 76 Pa. St. 481. Formal objections not made in the court below will not be considered on appeal. Rawson v. Guilberson, 6 Iowa 507. 7. Pittsburg, etc., R. Co. v. Mt. Pleasant, etc., R. Co., 76 Pa. St. 481; Merriam v. Baker, 9 Minn. 40. But see Buffum -v. Tilton, 17 Pick. (Mass.) 510. A bad replication may upon demurrer be a sufficient reply to a bad plea. Leavitt v. Mowe, 54 Md. 613. A rep- lication that, at the commencement of the suit in which the plea was inter- posed, there was not another suit pend- ing for the same cause of action was held good in Haight v. Holley, 3 Wend. (N. Y.) 258. 772 Taking the ANOTHER SUIT PENDING. Objection. Dismissal on Motion. The court cannot dismiss a case on motion on the ground of a former suit pending, when a plea in abate- ment therefor has been replied to and the issue thereon remains undisposed of. 1 Judgment. The proper judgment on sustaining a demurrer to a plea in abatement is not final, but only quod respondent ouster* The rule is different when issue is joined upon such plea and the jury finds for the plaintiff. In that case he is entitled to a verdict on the merits. 3 The judgment for the defendant on a plea in abatement, whether it be on an issue in fact or in law, is that the writ be quashed.* 2. In Equity Demurrer. If it appears upon the face of the bill that there is another suit pending in another court of equity in the same jurisdiction between the same parties for the same cause of action, the objection may be taken by demurrer.* Plea. Otherwise the objection must be taken by plea in abate- ment and not by answer 6 or motion, 7 except when two suits are brought in the name of an ii.r'ant, in which case it is a motion of course to obtain a reference .on the statement of coun- sel that both suits are for the same purpose, to see which of them is most for the infant's benefit, and so most proper to be pro- ceeded with. 8 Form of Plea. The plea should set forth the commencement of the former suit, its general nature, character, and objects, the re- lief prayed, and how far it has progressed. 9 It should state that there have been proceedings in the former suit, such as an ap- pearance, or process requiring an appearance at least. 10 It should 1. Gruler v. McRoberts, 48 Mich, nessee, etc., R. Co., 13 Lea (Kan.) 316. 600. 2. Gould PI. 300; Atkinson v. State Plea Standing for Answer. A plea Bank, 5 Blackf. (Ind.) 85; Haight v. may be ordered to stand for an answer; Holley, 3 Wend. (N. Y.) 263; Brani- and under the Massachusetts practice gan v. Rose, 8 111. 123. the plea, if inserted in an answer, must 3. Stephen PI. 105; Gould PI. 300; be taken to be part of it and true for Atkinson v. State Bank, 5 Blackf. all the purposes of the case if the case (Ind.) 85; Haight v. Holley, 3 Wend, is set down by the plaintiff for hearing (N. Y.) 263. upon the bill and answer. Tansey v. 4. i Chitty PI. 457; Blackburn z>. McDonnell, 142 Mass. 220. Watson, 85 Pa. St. 241. 7. Murray z/. Shadwell, 17 Ves. Jr. 5. r Foster Fed. Pr. (2d ed.) 108. 353, disapproving Anonymous, Mosely 6. Pierce v. Feagans, 39 Fed. Rep. 268. See also Hertell v. Van Buren, 587; Battell v. Matot, 58 Vt. 271. 3 Edw. Ch. (N. Y.) 20; Parmelee v. A Preliminary Matter. As an incident Tennessee, etc., R. Co., 13 Lea(Tenn.) among other matters in an answer on 600. the merits it will not avail. Curd v. 8. Daniell Ch. Pr. (5th ed.) 69, 634; Lewis, i Dana (Ky.) 353. The right Sullivan v. Sullivan, 2 Mer. 40; Bat- to rely on a plea in abatement is waived tell v. Matot, 58 Vt. 281. by including in the same pleading an 9. Crescent City Live Stock, etc., answer to the merits. Marshall v. Co. v. Butchers' Union Live Stock, Otto, 59 Fed. Rep. 249. It is not too late etc., Co., 12 Fed. Rep. 225; Foster v. when filed after a continuance made Vassall, 3 Atk. 590; Story Eq. PI. with express reservation of the right 737; i Foster Fed. Pr. (2d ed.) 129. to make defense. Parmelee v. Ten- 10. Story Eq. PI. 737; Moore v. 773 Taking the ANOTHER SUIT PENDING. Objection. then aver specifically that the second suit is for the same subject- matter 1 as the first and seeks the same or similar relief, 2 and that the former suit is still pending. 3 Verification. A plea of this kind is not put in upon oath. 4 Proceedings upon Plea. The usual course is not to reply to the plea, 5 or to have the plea set down and argued, but to refer it on motion of the plaintiff at once, and of course to a master, to look into the two suits and report whether or not they are both for the same matter. 6 If he reports that they are, the plea is allowed ; 7 but if he reports that they are not, the plea is then Welsh Copper Co., i Eq. Abr. 39, pi. 14. 1. Devil v. Brownlow, 2 Dick. 611; Mitford PI. Ch. 2, 2, part 2; Story Eq. PI. 737; Crane v. Larsen, 15 Oregon 349. The averment may be omitted, provided facts are stated suf- ficient to show the identity of subject- matter. Davison v. Johnson, 16 N. J. Eq. 112; McEwen v. Broadhead, n N. J. Eq. 129. Annexing Former Bill by Reference. Although the terms of the plea import that the former suit is for the same cause of action, if a part of the former bill is annexed to the plea by ref- erence, the plea must be read pre- cisely as it would had the former bill been introduced in its very terms into the body of the plea. Wheeler v. Mc- Cormick, 8 Blatchf. (U. S.) 267. 2. Behrens v. Sieveking, 2 Myl. & C. 602; Wheeler v. McCormick, 8 Blatchf. (U. S.) 267; Jenkins v. El- dridge, 3 Story (U. S.) 183; Story Eq. PI- 737- 3. Story Eq. PI. 737. See Urlin v. Hudson, i Vern. 332; Mitford PI. ch. 2, 2, part 2. Great strictness is required. Moss v. Ashbrooks, 12 Ark. 369- 4. Green v. Neal, 2 Heisk. (Tenn.) 217; Mitford PI. ch. 2, 2, part 2, citing Urlin v. Hudson, I Vern. 332. But see United States Equity Rule 31. Certificate of Counsel that the plea is well founded is not required. Nelson v. Foster, 5 Biss. (U. S.) 44. 5. Battell v. Matot, 58 Vt. 281 ; i Daniell Ch. Pr. (sth ed.) 637! See Jones v. Segueira, i Ph. 82, 6 Jur. 183. In New Jersey the complainant may take issue upon the facts or have a reference to a master. If he does neither, then the defendant must set the plea down for argument. McEwen v. Broadhead, n N. J. Eq. 129. A gen- eral replication does no harm, and a motion to take it oif the files will be dismissed. Allen v. Allen, 3 Tenn. Ch. 145. 6. i Daniell Ch. Pr. (sth ed.) 637; Battell z>. Matot, 58 Vt. 281. The plaintiff may admit as much of the plea as he chooses and take a refer- ence for the remainder, i Daniell Ch. Pr. 797, See also Searight v. Payne, i Tenn. Ch. 186. The court may re- fuse a motion for reference where the pleadings clearly show that different questions are raised in the two suits. Loring v. Marsh, 2 Cliff. (U. S.) 311. In Wisconsin there were no masters in chancery, and the plea was disposed of by the court. Rowley v. Williams, 5 Wis. 151. By the practice in the Neio York Court of Chancery the defendant was required to obtain an order of reference, i Hoff. Ch. Pr. 225. Ac- cording to the English chancery prac- tice, if the plaintiff did not obtain an order of reference and report within one month, the defendant could have, as of course, an order to dismiss the bill with costs. i Daniell Ch. Pr. (5th ed.) 637. See Long v. Storie, 9 Hare 542; Hart v. Philips, 9 Paige (N. Y.) 293. The setting of a plea for hearing on its sufficiency, or taking issue upon it, is a "step necessary to the progress of the cause," and a rule may be made on the plain- tiff to take such step under the Ten- nessee Code, 4390, during the term. Montgomery v. Olwell, i Tenn. Ch. 183. 7. i Daniell Ch. Pr. (sth ed.) 637, 638. Compare American Bible Soc. v. Hague, 4 Edw. Ch. (N. Y.) 117; Crofts v. Wortley, I Ch. Cas. 241; Leigh r. Turner, 14 W. R. 361; Savary v. Tay- lor, 10 B. Mon. (Ky.) 334. Where the plea is found true it seems that the bill must be dismissed without refer- ence to the equity arising from any facts stated in the bill. Briggs v. 774 Taking the ANOTHER SUIT PENDING. Objection. overruled. 1 If, however, the plaintiff considers the plea defec- tive in form he may set it down for argument, 2 which is deemed an admission of the truth of the plea, and it must be allowed un- less defective in form. 3 3. Under Code Systems a. OBJECTION, How TAKEN. Under the Code systems the objection of a former suit pending is taken by demurrer if the facts appear upon the face of the complaint ; 4 and if not so appearing, then by answer. 5 b. AT WHAT STAGE OF PROCEEDINGS. The objection of a former action pending is matter of abatement, and must be inter- posed before pleading to the merits. 6 Stroud, 58 Fed. Rep. 717 ; Farley v. Kittson, 120 U. S. 314. Consequently where the court has any doubt, the plea will be overruled. Briggs v. Stroud, 58 Fed. Rep. 721. 1. I Daniell Ch. Pr. (sth. ed.) 638. The plea may be allowed to stand as a good defense to so much of the bill as is covered by the former suit, and overruled as to the rest. Searight v. Payne, I Tenn. Ch. 186. 2. Tarleton v. Barnes, 2 Keen 636. 3. i Daniell Ch. Pr. (sth ed.) 637; Ld. Red. 247; Story Eq. PI. (loth ed.) 74. In the New York Court of Chan- cery the practice was regulated by an order of court, i Hoff. Ch. Pr. 225. In New Jersey by statute. McEwen v. Broadhead, n N. J. Eq. 129; Matthews v. Roberts, 2 N. J. Eq. 338. In Ten- nessee by the Code, g 4393. Mont- gomery v. Olwell, i Tenn. Ch. 183; Green v. Neal, 2 Heisk. (Tenn.) 217; Macey v. Childress, 2 Tenn. Ch. 23; Allen v. Allen, 3 Tenn. Ch. 145; Sea- right v. Payne, i Tenn. Ch. 186. 4. Hornfager v. Hornfager, 6 How. Pr. (N. Y. Supreme Ct.) 279, i Code Rep. N. S. (N. Y.) 412; Ansorge v. Kaiser, 22 Abb. N. Cas. (N. Y. Su- preme Ct.) 305; Ward v. Ward, 12 How. Pr. (N. Y. Supreme Ct.) 193; Curtis v. Piedmont Lumber, etc., Co., 109 N. Car. 401; Smith v. Moore, 79 N. Car. 85; De Armond v. Bohn, 12 Ind. 607; Aikenz/. Bruen, 21 Ind. 137, hold- ing a demurrer " for want of sufficient facts" insufficient; ./Etna Iron Works v. Firmenich Mfg. Co. (Iowa, 1894), 57 N. W. Rep. 904. 5. Wright v. Maseras, 56 Barb. (N. Y.) 521; Gregory v. Gregory, 33 N. Y. Super. Ct. 29; O'Beirne v. Lloyd, i Sweeney (N. Y.) 19; Bruckheimer v. Merchants' Ins. Co., I Rob. C. C. (N. Y.) 363; Hornfager v. Hornfager, 6 How. Pr. (N. Y. Supreme Ct.) 279, i Code Rep. N. S. (N. Y.) 412; Ward -o. Ward, 12 How. Pr. (N. Y. Supreme Ct.) 193; Weil v. Guerin, 42 Ohio St. 299; Larco v. Clements, 36 Cal. 132; Lake Merced Water Co. v. Cowles, 31 Cal. 215; Coubrough v. Adams, 70 Cal. 374; Harris v. Johnson, 65 N. Car. 478; ^Etna Iron Works v. Firmenich Mfg. Co. (Iowa, 1894), 57 N. W. Rep. 904. Not by Motion. The objection cannot be made by motion. Champ v. Ken- drick, 130 Ind. 549; Central, R. etc., Co. v. Coleman, 88 Ga. 294; Danforth v. Tennessee, etc., R. Co., 93 Ala. 614; Kennon v. Petty, 59 Ga. 175. Where one of several defendants has success- fully pleaded pendency of a former suit in abatement it is not a ground for a motion to dismiss as to all of the defendants. Williams v. McGrade, 18 Minn. 82. Waiver. It must be pleaded in some way or it is considered as waived. Hollister v. Stewart, in N. Y. 644; Bishop v. Bishop, 7 Robt. (N. Y.) 194; Bernecker v. Miller, 44 Mo. 102; Will- iams v. Rawlins, 33 Ga. 117; Welchel v. Thompson, 39 Ga. 559; Smith v. Moore, 79 N. Car. 82; Blackwell v. Dibbrell, 103 N. Car. 270; Walsworth v. Johnson, 41 Cal. 61. Dismissal Sua Sponte. In Long v. Jarratt, 94 N. Car. 443, it was held that where the relief sought can be obtained by motion in the original cause pending in the same court, the second action ought to be dismissed ex mero motu without prejudice. Objection on Appeal. The objection cannot be first raised on appeal. Aiken v. Bruen, 21 Ind. 137. In Louisiana a former suit pending is set up by declinatory exception. Fleitas v. Cockrem, 101 U. S. 301. 6. Estep v. Marsh, 21 Ind. 196; Mon- tague v. Brown, 104 N. Car. 161; Max- well v. First Nat. Bank (Tex. Civ. App., 1894), 24 S. W. Rep. 848. See, however, the next heading in the text. Amendment of Answer. It is discre- tionary with the court to permit the 775 Taking the ANOTHER SUIT PENDING. Objection. c. ANSWERS IN ABATEMENT Necessary Averments. The answer snould state when the former action was commenced* and in what court, 3 and that it is still pending ; 3 and it must clearly allege or show that the cause of action in the first suit is identical with that in the second. 4 joinder with Matter in Bar. The matter in abatement may be prop- erly joined in the answer with a defense in bar. 5 Separate Findings. But where the case goes to the jury upon both defenses the court should require a separate verdict upon them. 6 d. JUDGMENT ON SUSTAINING ANSWER. Where the answer is sustained the proper judgment to be entered is one abating the subsequent action, 7 and not a judgment that the plaintiff take nothing thereby. 8 4. In the Admiralty. The objection is taken in the admiralty by a special plea in the nature of a plea in abatement, known as a dilatory or declinatory exception, 9 which is always brought for- ward before the general defense in bar or general answer on the merits. 10 defendant at the close of the trial to amend his answer by setting up a for- mer action pending. Coubrough v. Adams, 70 Cal. 374. 1. Otherwise it is demurrable. Eice- man v. Leonard, 75 Ind. 46. In Indiana answers in abatement must be verified. Morgan County v. Holman, 34 Ind. 256. They are strictly construed in California. Larco v. Clements, 36 Cal. 132. 2. Berger v. Moessinger, 5 Ohio Cir. Ct. Rep. 432. 3. Moore v. Kessler, 59 Ind. 152; Tippecanoe County v. Lafayette, etc., R. Co., 50 Ind. 118; I, 3, supra. 4. Wilson v. St. Paul, etc., R. Co., 44 Minn. 445; Larco v. Clements, 36 Cal. 132; Calaveras County v. Brock- way, 30 Cal. 325; Curtis v. Piedmont Lumber, etc., Co., 109 N. Car. 401, See also I. 5, supra. General Allegation. An answer al- leging that "there is another action now pending between the same par- ties for the same identical cause of ac- tion mentioned in the complaint in this action " was held sufficiently defi- nite and certain by Harris, J., in Ward v. Ward. 12 How. Pr. (N. Y. Supreme Ct.) 193. Annexing Copy of Record. Annexing a copy of the record of the former suit does not dispense with the neces- sity of a trial and introduction of the record in evidence, even though both cases are pending in the same court. People v. De la Guerra, 24 Cal. 73. 5. Sweet v. Tuttle, 14 N. Y. 465; Gardner v. Clark, 21 N. Y. 399; War- der v. Henry, 117 Mo. 530; Erb v. Per- kins, 32 Ark. 428; Grider v. Apperson, 32 Ark. 332. Conflicting views have been expressed in North Carolina, Woody -v. Jordan, 69 N. Car. 189; Montague v. Brown, 104 N. Car. 161; and in Indiana, Kenyon v. Williams, 19 Ind. 47; Bond v. Wagner, 28 Ind. 462. Ambiguity. But the averments must clearly indicate that the former action, etc., is relied upon as an abatement and not as a defense in bar. O'Beirne v. Lloyd, i Sweeney (N. Y.) 23. See also jEtna Iron Works v. Firmenich Mfg. Co. (Iowa, 1894), 57 N. W. Rep. 905; Warder v. Henry, 117 Mo. 530. 6. Gardner v. Clark, 21 N. Y. 399. Or instruct the jury to refrain from passing on the merits if the matter in abatement be found true. Montague v. Brown, 104 N. Car. 161. 7. Coubrough v. Adams, 70 Cal. 374. 8. Coubrough v. Adams, 70 Cal. 374. It should not be in bar. Larco v. Clements, 36 Cal. 132. See also Cur- tis -v. Piedmont Lumber, etc., Co., 109 N. Car. 401. Where the pendency of a prior suit is alleged as a defense and nega- tived by the finding of the jury the de- fendant can obtain no relief in the ap- pellate court. Winfield v. Potter, 38 N. Y. 67. 9. Certain Logs of Mahogany, 2 Sumn. (U. S.) 589. 10. Certain Logs of Mahogany, 2 Sumn. (U. S.) 589. 776 ANSWERS IN CODE PLEADING. By W. L. CRAWFORD. I. INTKODUCTOKY CONTENTS OF ANSWEB, 779- II. FOEM OF A DENIAL, 781., 1. Introductory Words, 781. 2. What Constitutes a Good General Denial, 782. 3. What Constitutes a Good Specific Denial, 783. III. SPECIFIC DENIALS AND THEIE SCOPE, 785. 1. Optional to Use Specific Denial, 785. 2. Construction, 787. IV. ALLEGATIONS ADMITTED BY A FAILUEE TO DENY, 789. 1. Generally, 789. 2. What Are Material Allegations, 790. 3. Denial of Immaterial Allegations, 791. 4. Findings, 792. 5. Evidentiary Matters, 792. 6. Value and Damages, 792. 7. Time, 793. 8. Legal Conclusions, 793. 9. Possession and Ownership, 793. 10. Notes, Bills, and Other Instruments, 794. 11. Libel and Slander, 795. 12. Sales, 795. 13. Release and Payment, 795. 14. Pleading a Different Contract or Tort, 796. 15. Mandamus, 796. 1 6. Divorce Proceedings, 796. 17. Allegations of Status and Capacity, 796. V. NEGATIVES PEEGNANT, 796. 1. Generally, 796. 2. Conjunctive Denials, 797. 3. Literal Denials, 798. VI. AEGUMENTATIVE DENIALS, 799- 1. Defined, 799. 2. What Constitutes an Argumentative Denial, 800. 3. #><:/, 80 1. VII. GENEEAL DENIAL COUPLED WITH ADMISSIONS, 802. 1. Generally, 802. 2. Answer Must Be Definite and Specific as to Admissions, 804. 777 ANSWERS IN CODE PLEADING. VIII. DENIALS OF LEGAL CONCLUSIONS, 805. 1. Generally, 805. 2. Denial of Indebtedness, 805. 3. Fraud, 806. 4. Denial that an Act Was " Duly " Done, 807. 5. Denial of Capacity, 807. 6. Answer Containing a Legal Conclusion, 807. 7. Denial of the Facts Impliedly Denies the Conclusion of Law, 808. IX. DENIALS OF KNOWLEDGE, 808. 1. How Such Denials Construed, 808. 2. Form, 809. 3. Denials "upon Information and Belief ," 810. 4. When a Denial of Knowledge or Information Cannot be Inter- posed, 8 1 1. [815. 5. What Matters are Presumptivelywithin Defendant's Knowledge, X. WHAT MAY BE PKOVED UNDER A GENEEAL DENIAL, 816. 1. Nature of a General Denial, 816. 2. Payment, 817. 3. Actions on Contracts, 818. 4. Judgments, 820. 5. Torts, 821. 6. Ejectment and Other Matters Pertaining to Real Estate, 825. 7. Mitigating Circumstances, 827. XL THE GENERAL DENIAL AS A PLEA IN ABATEMENT, 827. XII. SCOPE OF GENERAL DENIAL LIMITED BY STATUTE, 829. XIII. NEW MATTER, 830. 1. General Nature, 830. 2. Manner of Pleading, 831. 3. Statute of Limitations, see STATUTE OF LIMITATIONS. 4. Legal Conclusions, see LEGAL CONCLUSIONS. 5. Equitable Defenses, see EQUITABLE DEFENSES. 6. Contributory Negligence, see CONTRIBUTORY NEGLIGENCE. 7. Statute of Frauds, see STATUTE OF FRAUDS. 8. What Constitutes New Matter, 837. a. Introductory, 837. b. Equitable Defenses, 837. c. Matter in Abatement, 838. d. Partial Defenses, 840. *?. Mitigating Circumstances, 841. /. Payment, 842. ^. Res fudicata, 843. ^. Estoppel in Pats, 843. *. Fraud, 844. /. Illegality of Contract, 844. . Justification, 845. /. Statute of Limitations, 846. w. Contributory Negligence, 847. . Statute of Frauds, 847. 0. Want and Failure of Consideration, 848. ^>. Leave and License, 848. ^. Champerty, 849. r. Tender, 849. 5. Accord and Satisfaction, 840. Introductory. ANSWERS IN CODE PLEADING. Contents of. /. Release, 849. u. Ratification, Subrogation, and Rescission, 849. v. Award, 849. w. Immaturity of the Indebtedness, 849. x. Discharge in Bankruptcy, 849. y. Usury, 850. z. Bona-fide Purchaser, 850. z 1 . Objection to Statute or Ordinance, 850. z*. Title in Action of Trespass, 850. z*. Liens. 850. z*. Mining Rules and Customs, 851. z". Mistake, 851. z 6 . Release of Guarantors, Indorsers, and Sureties, 851. z" 1 . Contract Not Properly Performed, 851. Z K . All Matter in Avoidance, 851. XIV. JOINDER OF DEFENSES, 852. I. Defendant May Plead as Many Defenses as He Has, 852. '2. Manner of Pleading Several Defenses, 852. 3. Matter in Abatement, and Matter in Bar, 854. 4. States Where Inconsistent Defenses Allowed, 854. 5. What Defenses Are Inconsistent, 856. 6. Remedies for Inconsistency, 860. XV. JOINT AND SEVERAL ANSWERS, 860. 1. The Right to Join in an Answer, 860. 2. How a Joint Answer Is Construed, 86 1. 3. The Right to Interpose a Separate Answer, 86 1. 4. The Defense in One Answer Inuring to All, 86 1. 5. Adoption of an Answer, 862. As to Sham or Frivolous Answers, see SHAM AND FRIVOLOUS PLEADING. As to Definiteness and Certainty Required in Answers, see DEFINITE- NESS AND CERTAINTY IN PLEADING. As to Supplemental Answers, see SUPPLEMENTAL PLEADINGS. As to Service of Answers, see SER VICE OF PROCESS. As to Time to Answer, see TIME TO PLEAD. As to Set-off" and Counterclaim, see that title. As to Verification of Answers, see VERIFICA TION. I. INTRODUCTORY CONTENTS OF ANSWER. All the Codes pre- scribe what the answer shall contain. Some Codes provide that the answer of the defendant shall contain : first, a general or specific denial of each material allegation of the petition controverted by the defendant, or a denial of any knowledge or information thereof sufficient to form a belief ; second, a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition. 1 With the exception of a few verbal changes, and sometimes of other matters which are indicated as being proper in an answer, 1. Missouri, Rev. Sts. 2049; New South Dakota, Levisee Rev. Code, York, Bliss Ann. Code, 500; North. 118; Washington, Code Civ. Proc. Dakota, Levisee's Rev. Code, 118; 194; Wisconsin, Ann. Sts. 2655. South Carolina, Code Civ. Proc., 170; 779 Introductory. ANSWERS IN CODE PLEADING. Contents of. all the Codes are similar to the foregoing in their provisions ; they recognize the distinction between " denials " and " new matter." 1 1. Arkansas. The answer shall con- the knowledge of the defendant, it shall be sufficient to put such allega- tions in issue for the defendant to state, as to such allegation, that he has not and cannot obtain sufficient knowledge or information upon which to base a belief. Code Civ. Proc. Colorado, 56. Connecticut. The defendant in his answer shall specially deny such alle- gations of the complaint as he intends to controvert, admitting the truth of the other allegations, unless he in- tends, in good faith, to controvert all the allegations, in which case he may deny them generally, as follows: "The defendant denies the truth of the matters contained in the plaintiff's complaint." He may also, in his an- swer, state special matters of defense, and shall not give in evidence matter in avoidance, or of defense, consistent with the truth of the material allega- tion of the complaint, unless in his answer he states such matter spe- cially. Under a general denial the plaintiff shall be bound to prove the material facts alleged in the complaint. If the defendant intends to controvert the right of the plaintiff to sue as exe- cutor, or as trustee, or in any other representative capacity, or as a cor- poration, or the execution or delivery of any written instrument or recog- nizance sued upon, he shall deny the same in his answer specifically. Gen. Sts. of Connecticut (1888), 874. Indiana. The answer shall contain: First. A denial of each allegation of the complaint controverted by the de- fendant. Second. A statement of any new matter constituting a defense, counterclaim, or set-off, in plain and concise language. Rev. Sts. Indiana (1881), 347. Iowa. The answer shall contain: I. The name of the court of the county, and of the plaintiffs and defendants ; but where there are several plaintiffs and defendants, it shall only be necessary to give the first name of each class, with the words, and others. 2 % A general denial of each r.1 lega- tion of the petition, or else of any knowledge or information thereof suf- ficient to form a belief. tain: First. The style of the court and the style of the action, followed by the word " Answer." But where there are several plaintiffs and defendants, it shall only be necessary to give the one first named of each class, with the words "and others." Second. A denial of each allega- tion of the complaint controverted by the defendant, or of any knowledge or information thereof, sufficient to form a belief. Third. A statement of any new matter constituting a defense, counter- claim, or set-off, in ordinary and con- cise language, without repetition. Digest of the Statutes of Ark. (1884) 5033- California. Idaho, anl Utah. The answer of the defendant shall contain: 1. A general or specific denial of the material allegations of the com- plaint controverted by the defendant. 2. A statement of any new matter constituting a defense or counterclaim. If the complaint be verified, the de- nial of each allegation controverted must be specific, and be made posi- tively or according to the information and belief of the defendant. If the defendant has no information or be- lief upon the subject "sufficient to en- able him to answer an allegation of the complaint, he may so state in his answer, and place his denial on that ground. If the complaint be not verified, a general denial is sufficient, but only puts in issue the material allegations of the complaint. Code Civ. Proc. California, 437; Rev. Sts. Idaho (1887), 4183; Utah Code Civ. Proc. 300. Colorado. The answer of the defend- ant shall contain: First. A general or specific denial of each material allegation in the complaint intended to be controverted by the defendant. Second. A statement of any new matter constituting a defense or counterclaim, in ordinary and con- cise language, without unnecessary repetition. In denying any allegation in the complaint not presumptively within 780 Form of a ANSWERS IN CODE PLEADING. Denial. II. FORM OF A DENIAL 1. Introductory Words. When the pleader in response to the plaintiff's complaint desires to inter- pose a denial, he may make use of any common form of words 3. A specific denial of each allega- tion of the petition controverted by the defendant, or any knowledge or information thereof sufficient to form a belief. 4. A statement of any new matter constituting a defense. 5. A statement of any new matter constituting a counterclaim. Rev. Code of Iowa, 2655. Kansas. The answer shall contain: First. A general or specific denial of each material allegation of the peti- tion controverted by the defendant. Second. A statement of any new matter constituting a defense, counterclaim, or set-off, or a right to relief concern- ing the subject of the action, in ordi- nary and concise language, and with- out repetition. Gen. Sts. Kansas, vol. 2, 4177. Minnesota. The answer of the de- fendant shall contain: First. A denial of each allegation of the complaint controverted by the de- fendant, or of any knowledge or in- formation thereof sufficient to form a belief. Second. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition. Third. All equities existing at the time of the commencement of any action, in favor of a defendant therein, or discovered to exist after such com- mencement, or intervening before a final decision in such action. Sts. of Minnesota, 4771. Montana. The answer of the de- fendant shall contain: First. A specific denial of the ma- terial allegations of the complaint con- troverted by the defendant. Second. A statement of any new matter constituting a defense or counterclaim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made posi- tively or according to the information and belief of the defendant. Compiled Sts. of Montana (1887), 89. Nebraska, Ohio, and Wyoming. The answer shall contain: First. A gen- eral or specific denial of each material allegation of the petition controverted by the defendant. Sec- ond. A statement of any new mat- ter constituting a defense, counter- claim, or set-off, in ordinary and concise language, without repetition. Consolidated Sts. of Nebraska, 4639; Rev. Sts. of Ohio, 5070; Wyoming Rev. Sts. g 2457. North Carolina. The answer of the defendant must contain: 1. A general or specific denial of each material allegation of the com- plaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition. In all actions to recover damages by reason of the negligence of the de- fendant, where contributory negli- gence is relied upon as a defense, it shall be set up in the answer, and proved on the trial. This provision shall apply to similar actions when brought by employees against their employers. Code Civ. Proc. North Carolina, 243. Arizona and Georgia. The Codes of Arizona and Georgia differ materially in language from the others; there seem to be no statutory provisions which define an answer, but there are cognate statutes dealing with answers. Arizona. The defendant in his an- swer may plead as many several matters, whether of law or fact, as may be necessary for his defense, and which may be pertinent to the cause, but such pleas shall be stated in the following order and filed at the same time: * * * 4. Matters in bar of the action. 5. Matters of counter- claim and set-off. Arizona Rev. Sts. 734- Georgia. The general issue is a denial of the allegations in the plain- tiff's declaration, and shall be con- sidered as filed in all cases which are answered to at the first term; and no other evidence is admissible under such plea except such as disproves the plaintiff's cause of action; all other matters in satisfaction or avoidance must be specially pleaded. Code, 3458. See, however, Laws 1894. 781 Form of a ANSWERS IN CODE PLEADING. Denial. to introduce it. It may be in the form, " Defendant for answer says he denies." 1 2. What Constitutes a Good General Denial. Any words which fairly import a denial of all the averments of the complaint con- stitute a good general denial.'-* "Each and Every" Allegation Denied. A general denial of each arid every allegation of the complaint is sufficient. 3 Denial of "Material" Allegations. A denial of all the "material" allegations of the complaint does not constitute a good general denial. 4 1. Town of Denver v. City, 7 Wash. 226; Espinosa v. Gregory, 40 Cal. 58; Chapman v. Chapman, 34 How. Pr. (N. Y. Supreme Ct.) 281; Jones -v. Ludlum, 74 N. Y. 61; Moen v. Eldred, 22 Minn. 538. Contra, " says that he denies " is bad. Arthur v. Brooks, 14 Barb. (N. Y.) 533; Blake v. Eldred, 18 How. Pr. (N. Y. Supreme Ct.) 240. "States and Shows." An answer which alleges that defendant "states and shows that he denies each and every allegation, etc.," is sufficient, although objectionable in form. Moen v. Eldred, 22 Minn. 538. 2. Hoffman v. Eppers, 41 Wis. 251; Kingsley v. Oilman, 12 Minn. 515. Form Immaterial. The mere form of the denial is immaterial. Morrison v. O'Reilly, 2 Utah 165. Not Guilty. In an action for assault and battery, an answer, " that de- fendant is not guilty of the grievances alleged in the complaint, or any or either of them, or any part thereof," is a sufficient general denial. Hoff- man v. Eppers, 41 Wis. 251. Non Est Factum. In an action upon a promissory note, an answer conclud- ing, "and he [defendant] says that he did not execute said note in manner and form as set out in said plaintiff's complaint herein, and that the same is not his note," is sufficient to consti- tute a good plea of non est factum. Hine v. Shiveley, 84 Ind. 136. Must be Explicit. A general denial must be explicit, and must not be loaded down with explanations. Creighton v. Kellermann, i Disney (Ohio) 548- Georgia. The marking on the docket at the first term of the names of counsel for the defendant is equiv- alent to answering, and is in effect a plea of the general issue. Price v. Bell, 88 Ga. 740; Simon v. Myers, 68 Ga. 74- The general issue is considered filed in all cases which are answered at the appearance term. National Bank v. Southern Porcelain Mfg. Co., 59 Ga. 157- 3. Fetz v. Clark, 7 Minn. 217; Kel- logg v. Church, 4 How. Pr. (N. Y. Su- preme Ct.) 339. But it was not so under the N. Y. Code of 1851, which only authorized a specific denial. Rosenthal v. Brush, I Code Rep. N. S. (N. Y.) 228. With an Exception. A denial of each and every allegation, except what the court may construe to be admitted by the statements in the answer, is a bad form. Starbuck v. Dunklee, roMinn. 168, 83 Am. Dec. 68. Denying "Generally" Every Allega- tion. In an action for real estate com- missions, an averment that defendant " denies generally each and every alle- gation " of the complaint is a good general denial. Penter v. Staight, I Wash. 365. Form Prescribed. Where the denial is general, it should be not simply of " all," but of " each and all," or " each and every " of the allegations referred to. Lewis v. Coulter, 10 Ohio St. 452. North Carolina. An answer denying "the said complaint and each and every allegation contained therein " is ba I. Schehan v. Malone, 71 N. Car. 4-. *. Lewis v. Coulter, 10 Ohio St. 452; Thomas v. Cline, I Cleve. Rep. (Ohio) 123; Pry v. Hannibal, etc., R. Co., 73 Mo. 123; Edmonson v. Phillips, 73 Mo. 57; Smith v. Lindsey, 89 Mo. 76; Collins v. Trotter, 81 Mo. 275; Mon- tour v. Purdy, n Minn. 384, 88 Am. Dec. 88; Dodge v. Chandler, 13 Minn. 114; Dole v. Burleigh, i Dakota 218. " A pleader ought not to be permitted, by the use of the qualifying word ' material ' to assume to himself the Form of a ANSWERS IN CO BE PLEADING. Denial. Counter-Averment. In California a counter-averment may make a general denial. 1 Form of the General issue. A general denial cannot be framed as was the general issue at common law. Denying the allegations of the complaint " in manner and form as therein alleged " is in- sufficient. 2 "No Allegation True." An averment that "no allegation of the complaint is true " is not a good answer. 3 3. What Constitutes a Good Specific Denial Generally. The form which a specific denial should take is, of course, wholly dependent upon the allegations of the complaint. The general rule is that it must be certain and definite as to the fact denied. 4 It should determination of the question as to what facts are material, and thus ren- der a conviction for perjury, on a wil- fully false verification, difficult or im- possible." Per curiam in Lewis v. Coulter, 10 Ohio St. 452. But such a denial is good as against a demurrer, though not good against a motion to make more certain and specific. Lew- is v. Coulter, 10 Ohio St. 452. Contra. Such a denial is good. In- gle v. Jones, 43 Iowa 286; Bailey v. Warren, i Oregon 357; Goodridge v. Union Pac. R. Co., 37 Fed. Rep. 182. This last case applied the law of Colo- rado, holding such denial good under the Colorado Code. 1. Jackson v. Feather River, etc., Water Co., 14 Cal. 19; Frisch v. Caler, 21 Cal. 71; Goddard v. Fulton, 21 Cal. 430; Woodworth v. Knowlton, 22 Cal. 164; Hill v. Smith, 27 Cal. 476; Thomp- son v. Lynch, 29 Cal. 189; Siter v. Jewett, 33 Cal. 92; Way v. Oglesby, 45 Cal. 655; Clink v. Thurston, 47 Cal. 21 ; Miller v. Brigham, 50 Cal. 615; Thompson v. Thompson, 52 Cal. 154- But probably this in other states amounts to an argumentative denial, which is bad. See post, VI. ARGU- MENTATIVE DENIALS. Recital of Facts. In ejectment the recital in the answer of the series of facts through which the defendant claims a right to the land amounts to no more than a general denial. Clink v. Thurston, 47 Cal. 21. Pleading Contract in Different Terms. Denial of contract as alleged and pleading it in different terms are equivalent to a denial of any other terms. Gilman v. Bootz, 63 Cal. 120. Inconsistent Matter. It is not neces- sary that a traverse should be in neg- ative words. An averment in the an- swer of the contrary of what is alleged in the complaint is equivalent to a de- nial. Even where the averment is not of the direct contrary of the alle- gation, but is inconsistent with its truth, it may, under certain circum- stances, be held to raise an issue. Perkins v. Brock, 80 Cal. 320. Contra. But that allegations of fact merely inconsistent with the plead- ing are not equivalent to a denial, and are not as a general rule allowa- ble under the Code, see Swinburne v. Stockwell, 58 How. Pr. (N. Y. Su- preme Ct.) 312; Wood v. Whiting, 21 Barb. (N. Y.) 190. Explaining Custom. An answer stat- ing that a custom alleged in the peti- tion is inconsistent with the terms of the policy sued on, and contrary to set- tled principles of law, is simply a gen- eral denial with an epithet, and is not demurrable. Shillito v. Merchants, etc., Ins. Co., 3 W. L. G. (Ohio) 296. 2. Clark v. Gramling, 54 Ark. 525; Rumbough v. Southern Imp. Co., 106 N. Car. 461 ; Lawrence v. Cooley, I Cleve. Rep. (Ohio) 178. But such an answer is good against demurrer. Lawrence v. Cooley, i Cleve. Rep. (Ohio) 178. Contra, it is demurrable. Clark v. Gramling, 54 Ark. 525. "As Alleged in the Petition." A de- nial of the facts averred in the peti- tion, "as alleged in the petition," is not a denial of the allegations. Phcenix Ins. Co. v. Meier, 28 Neb. 124. 3. Flack v. Dawson, 69 N. Car. 42; Heyer v. Beatty, 76 N. Car. 28. 4. "From its very name and nature it is the special traverse of some par- ticular averment found in the plaintiff's pleading, and must therefore depend to 783 Fornr of a ANSWERS IN CODE PLEADING. Denial. so describe the allegations of the complaint which are intended to be controverted that any person of intelligence can identify them. 1 Denial of What is Between Certain Specified Words, or in Folios or Paragraphs. It is bad pleading to deny portions of the complaint merely by reference to the first and last words of such portions, and to the folio where they are to be found. 2 Likewise a reference in the denial simply to certain paragraphs of the complaint as containing the averments which are controverted is improper. 3 Must be Categorical. The specific denial must be categorical. There must be no room to doubt what the pleader intends to deny. 4 a very great degree upon the matter and shape of the statement which is thus controverted." Pomeroy Code Remedies, 613. 1. Mattison v. Smith, I Robt. (N. Y.) 706. Texas. Under a statute providing that a verified account shall be prima- facie evidence unless defendant file a denial under oath that the account is not true, in whole or in part, it is not necessary that the words "in whole or in part " . be used in the denial. Hensley v. Degener (Tex. Civ. App.), 25 S. W. Rep. 1130. Sufficient on Demurrer. If the sub- stance of the defense clearly shows to which cause of action it is addressed, it is sufficient on demurrer. Willis v. Haggard, 6 How. Pr. (N. Y. Supreme Ct.) 433 . Specific Denials Construed. In re- plevin the answer denied " that at the time stated in the complaint, or at any other time, the property described in the complaint came into defendant's possession, or that the same was or remained in his possession at the com- mencement of this action, as alleged in said complaint." Held, a sufficient denial of possession. Roberts v. Jo- hannas, 41 Wis. 616. To an allegation in a complaint that the net earnings of a railroad company were over a specified sum, and more than sufficient to pay a specified debt, an answer denying that the net in- come, with or without regard to in- terest, was over such sum, or that it was more than sufficient to pay such debt, was held proper in form. Hughes v. Chicago, etc., R. Co., 45 N. Y. Super. Ct. 114. 2. Williams v. Lindblom (Supreme Ct.), 22 N. Y. Supp. 678; Avery v. New York Cent., etc., R. Co. (Super. Ct.), 6 N. Y. Supp. 547. It is not a compliance with the Code requiring a general or specific denial. Collins v. Singer Mfg. Co., 53 Wis. 305. Contra, such a denial is good. Gassett v. Crocker, 9 Abb. Pr. (N. Y. C. PL) 39. 3. Baylis v. Stimson, no N. Y. 21. See Caulkins v. Bolton, 98 N. Y. 511; Crosley v. Cobb, 3 How. Pr. N. S. (N. Y. Supreme Ct.) 37; Varnum v. Hart, 47 Hun (N. Y.) 18. But where the answer denies the truth of a complaint as contained in certain enumerated paragraphs (being all the paragraphs in the complaint), it is sufficient. Brown v. Cooper, 89 N. Car. 237. See Rumbough v. South- ern Imp. Co., 106 N. Car. 461, where only one paragraph was denied: held insufficient. 4. Smith v. Woodruff, i Handy (Ohio) 276; Verzan v. McGregor, 23 Cal. 339; Bomberger v. Turner, 13 Ohio St. 263; Building Assoc. v. Clark, 43 Ohio St. 427; West v. American Exch. Bank, 44 Barb. (N. Y.) 175. "It Is Not True." A denial which begins by saying " It is not true," etc., is evasive, and does not specifically deny the averment. Verzan v. Mc- Gregor, 23 Cal. 339. "Do Not Admit." An answer which reads "these defendants do not ad- mit " is not a good denial. Bomberger v. Turner, 13 Ohio St. 263. " Neither Denied nor Admitted. "An allegation that the truth of the matter "is neither denied nor admitted" is no denial. Building Assoc. v. Clark, 43 Ohio St. 427; Lake v. Steinbach, 5 Wash. 659. " Know Nothing." A statement that the parties " know nothing of the tak- ing of the lien by the said J. & D. ex- cept what they learn from the said answer and counterclaim " is not a suf 784 Specific Denials ANSWERS IN CODE PLEADING, and their Scope. Hypothetical Denial. A hypothetical denial is bad. 1 May be Denied as Alleged. But if a material fact is not directly alleged, it may be denied substantially as alleged. 2 May Contain Explanation. A denial may be coupled with averments of explanation. This corresponds to the special traverse of the common law. Such a denial is good. 3 III. SPECIFIC DENIALS AND THEIR SCOPE. 1. Optional to Use Spe- cific Denial. The pleader may always elect to specifically deny all the material allegations of the complaint, instead of using the general denial. 4 But the use of a specific denial precludes a gen- eral denial. Specific and general denials in the same answer are improper. 5 The general rule is that a general denial is always good, 6 but some states do not adhere to this rule, and require a specific denial, either in all cases or when the complaint is veri- fied. 7 And in some jurisdictions a specific denial is required ficient denial. Smith v. Woodruff, I Handy (Ohio) 276. Two Counts. Where the complaint contained two counts, each upon a note, an answer referring simply to "the note mentioned in the com- plaint" is bad for uncertainy. Kneed- ler v. Sternbergh, 10 How. Pr. (N. Y. Supreme Ct.) 67. 1. Wies v. Fanning, 9 How. Pr. (N. Y. Supreme Ct.) 543- Intended to be Hypothetical. The whole pleading must be construed to- gether ; it is not proper to eliminate a single paragraph from an answer and give effect to it as a denial when it appears from the context and other portions of the answer that the de- nial was intended to be hypothetical. Alemany v. Petaluma, 38 Cal. 553. 2. Bassett v. Enwright, 19 Cal. 636. 3. May Enumerate Particulars. Gee v. Culver, 12 Oregon 228. An answer which denies the performance of a contract by plaintiff may also specifi- cally enumerate several particulars in which such failure to perform con- sists. Mehurin v. Stone, 37 Ohio St. 49. See Stephen PI. 181. 4. Everett v. Waymire, 30 Ohio St. 308. ' ' The Code also allows a special trav- erse; but there is this difference be- tween the special traverse of the Code and that of the common law the lat- ter must always have been taken upon a single point, whereas now the de- fendant may put in issue in one de- fense as many of the allegations of the complaint as he chooses, leaving the residue unanswered." Per Selden, J. , in Benedict v. Seymour, 6 How. Pr. (N. Y. Supreme Ct.) 302. 5. School Dist. v. Holmes, 16 Neb. 486 ; Davenport v. Ladd, 38 Minn. 545. The specific denials should be struck out. Dennison v. Dennison, 9 How. Pr. (N. Y. Supreme Ct.) 246; Lippencott v. Goodwin, 8 How. Pr. (N. Y. Supreme Ct.) 242; Wies v. Fanning, 9 How. Pr. (N. Y. Supreme Ct.) 543. But see Homan v. Byrne, 14 N. Y. Wkly. Dig. 175, where it was held that an answer is not redundant by containing both. 6. Keeney v. Lyon, 10 Iowa 546. A general denial cannot be struck out as sham unless the pleadings them- selves show that it is false. Upton v. Kennedy, 36 Neb. 66; Ransom f. Ander- son, 9 S. Car. 438; Brooks v. Chilton, 6 Cal. 641; Reynolds v. Craus (Supreme Ct.), 16 N. Y. Supp. 792; Wayland v. Tysen, 45 N. Y. 281; Thompson v. Erie R. Co., 45 N. Y. 468; Claflin v. Jaroslauski, 64 Barb. 463. 7. Alabama. See Moog v. Barrow, 13 So. Rep. 665. Arkansas. In Arkansas the general denial is abolished. All denials must be specific. Gwynn v. McCauley, 32 Ark. 97 ; Mcllroy v. Buckner, 35 Ark. 555; Trapnall v. Hill, 31 Ark. 345; Shirk v. Williamson, 50 Ark. 562; Hecht v. Caughron, 46 Ark. 132. But after trial it is too late to object that the denial was general. Tyner v. Hays, 37 Ark. 599. California. If the complaint is sworn to, a general denial thereto is a nullity. Pico v. Colimas, 32 Cal. 578; Dewey v. Bowman, 8 Cal. 150; Patter- i Encyc. PI. & Pr. 50- 785 Specific Denials ANSWERS IN CODE PLEADING, and their Scope. when an instrument for the payment of money is sued on. 1 son v. Ely, 19 Cal. 28; Rupley v. Welch, 23 Cal. 455; Schenk v. Evoy, 24 Cal. 113; People v. Hagar, 52 Cal. 171; Greenbaum v. Turrill, 57 Cal. 289; Brooks v. Chilton, 6 Cal. 641; Dennis v. Table Mountain Water Co., 10 Cal. 370; Horn v. Volcano Water Co. , 13 Cal. 62; Hastings v. Dollarhide, 18 Cal. 391; Sacramento County v. Bird, 31 Cal. 67; Corcoran v. Doll, 32 Cal. 83- The following was construed as a general denial within the meaning of the rule: " The defendant further says that he is not guilty of the supposed trespasses and ejectment in the com- plaint mentioned, nor of any part thereof." Schenk v. Evoy, 24 Cal. 104. And so was an answer where the defendant admitted the making of the note sued on, but denied, " to the best of his knowledge, information, and belief, all and singular the other allegations in the said complaint." Stewart v. Street, 10 Cal. 373. And likewise an answer which contained a general denial of the averments of a verified complaint, with the qualifica- tion of "except as hereinafter ad- mitted." Levinson v. Schwartz, 22 Cal. 230. And it seems that any an- swer which resembles the general de- nial is insufficient when the complaint is verified. Hensley v. Tartar, 14 Cal. 508. When an insufficient denial is treated as sufficient by the admission of evi- dence without objection, objection is waived. Pinkham v. McFarland, 5 Cal. 137; Reniff v. The Cynthia, 18 Cal. 669; Kalkman v. Baylis, 23 Cal. 304; Racouillat v. Rene, 32 Cal. 450; Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152; Green v. Lake Superior, etc., Fuse Co., 46 Cal. 408; White v. San Rafael, etc., R. Co., 50 Cal. 417; Cave v. Crafts, 53 Cal. 135; Tulley v. Tranor, 53 Cal. 274; Spiers v. Duane, 54 Cal. 176; Pacific Bridge Co. v. Kirkham, 54 Cal. 558; Crowley v. City R. Co., 60 Cal. 628; Hiatt v. Trustees, 65 Cal. 481; Clark v. Child, 66 Cal. 91; Scott v. Sierra Lumber Co., 67 Cal. 71. But not if the answer is unverified, and no evidence is introduced to sus- tain it. Stockton v. Dahl, 66 Cal. 377- Service of an answer to a verified complaint, consisting of a general denial only, was admitted by plaintiff's attorney and "verification thereof waived." Held, that the waiver of verification did not admit the suffi- ciency of the answer or dispense with the necessity of a specific denial. Harney v. Porter, 62 Cal. 511. But a general denial to a verified complaint commenced before a justice of the peace is sufficient. Henderson v. Allen, 23 Cal. 519; Minturn v. Burr, 20 Cal. 49; Sullivan v. Gary, 17 Cal. 80. A general denial may be pleaded to an unverified complaint. Davanay v. Eggenhoff, 43 Cal. 395; Elder v. Spinks, 53 Cal. 293; Booth v. Chap- man, 59 Cal. 148. Georgia. A late statute requires de- fendant to answer each paragraph of the complaint, and forbids a mere general denial. Idaho. When the complaint is veri- fied the answer must deny specifically every material allegation of the com- plaint. Pence v. Durbin, i Idaho 550. New York Old Code. Under the Code of 1851, which required, " in re- spect to each allegation," a specific denial thereof, an answer saying that defendant denies specifically each and every matter is not sufficient. Sew- ard v. Miller, 6 How. Pr. (N. Y. Su- preme Ct.) 312. 1. Texas. The execution of an in- strument must be specifically denied by an affidavit. Pasch. Dig. art. 1443; Sawyer v. Dulany, 30 Tex. 479; May v. Pollard, 28 Tex. 677; Drew v. Har- rison, 12 Tex. 279; Kelly v. Kelly, 12 Tex. 452; Reid -v. Reid, n Tex. 585; Brashear v. Martin, 25 Tex. 202; Herndon v. Ennis, 18 Tex. 410; Close v. Judson, 34 Tex. 288; Alexander v. Lewis, 47 Tex. 482; Houston, etc., R. Co. v. Chandler, 51 Tex. 416; Bur- leson v. Burleson, 15 Tex. 423; Yeary v. Cummins, 28 Tex. 91; Fisk v. Miller, 13 Tex. 224; Austin v. Townes, 10 Tex. 24; Compton v. Western Stage Co., 25 Tex. Supp. 67; Bishop -v. Honey, 34 Tex. 245; Persons v. Frost, 25 Tex. Supp. 129; Ferguson v. Wood, 23 Tex. 177; Wilson v. Skaggs, loTex. 298; Johnston v. Jefferson, 31 Tex. 332; Primm v. Stewart, 7 Tex. 178; Parr v. Johnston, 15 Tex. 294; Barnett v. Logue, 29 Tex. 282; Tarpley v. Poage, 2 Tex. 139; Wells v. Moore, 15 Tex. 521; Lee v. Hamilton, 12 Tex. 413; Muckleroy v. Bethany, 23 Tex. 786 Specific Denials ANSWERS IN CODE PLEADING, and their Scope. 2. Construction. Each denial of an answer must be regarded as applying to the specific allegation it purports to answer, and not as forming a part of an answer to some other specific and entirely independent allegation. 1 Where an averment, taken in the sense in which it is intended by the pleader, is not denied, no issue is raised thereon.''* In the construction of a specific denial the courts are liberal, and allow any evidence to be given in support thereof which may be fairly implied in the allegation. 3 A specific denial of the execution of a contract puts in issue its validity and legal existence. 4 Suits on Notes. In the construction of denials interposed to suits on notes the courts are rather technical, and probably construe the answer less liberally than they would in other cases. 5 163; Van Hook v. Litchford, 35 Tex. 598; Eborn v. Zimpelman, 47 Tex. 504, 26 Am. Rep. 315; Keeble v. Black, 4 Tex. 69. 1. Racouillat v. Rene, 32 Cal. 450. "As each specific denial- is aimed at a particular averment, it should ex- pressly and unmistakably point out the statement of fact intended to be traversed ; it should deny that allega- tion fully and explicitly, so that the plaintiff may be forced to establish it by proofs ; and it should leave no doubt as to the matter at which it is aimed, and as to the issue intended to be made." Pomeroy Rem. 614. 2. Fellows v. Webb, 43 Iowa 133. 3. Sawyer v. Warner, 15 Barb. (N. Y.) 282, where the defendant denied that he ever gave plaintiff the note sued on, and he was allowed to show the cir- cumstances of the transaction, which seemed to negative the idea of his having ever made a note. But see Cogswell v. Hayden, 5 Oregon 22, where it was held that the allegation that a note was " made, executed, and delivered " was not put in issue by an answer denying that the note was " delivered." Suit for Rent. An averment in a complaint for rent that " the rent was, as it became due, duly demanded," is put at issue by a denial, in the answer, of " each and every allegation in the complaint, wherein and whereby de- fendant is charged with being liable for any rent to the plaintiffs, or of any sum being due or owing from him to them." New York Academy of Music v. Hackett, 2 Hilt. (N. Y.) 217. Not Given to Plaintiff. The bond be- ing set out in the complaint, a denial in the answer that defendant executed such bond to the plaintiff is not a denial that he executed the bond in suit, but only a denial that the obligee therein was identical with the plaintiff. Joint School -v. Lyford, 27 Wis. 506. Denial of Rendition of Service. A de- nial of the rendition of service is not a denial of employment. Ryan v. New York, 42 N. Y. Super. Ct. 202. 4. Browning v. Berry, 107 N. Car. 231. Pleading Legal Effect Differently. The fact that the defendant pleads the legal effect of an instrument dif- ferently from the plaintiff does not denv its execution. Cox v. Volkert, 86 Mo. 505. 5. Young v. Miller, 63 Cal. 302; Randolph v. Harris, 28 Cal. 562, 87 Am. Dec. 139 ; Morrill v. Morrill, 26 Cal. 289; Watson v. Barr, 37 S. Car. 463; Murphy v. Dunning, 30 Wis. 296; Buell v. Burlingame, n Colo. 164. Denying Legal Notice. The answer of the indorser denied that he had due or legal notice of the presentment of the note for payment, or of the non- payment thereof. Held, that no issue of fact was raised by this denial. Young v. Miller, 63 Cal. 302. Denial of Assignment. Where the al- legation is that, by an instrument in writing, the note in suit was assigned by the payee to the plaintiff for a valu- able consideration, the fact of the as- signment is not put in issue by a de- nial that the assignment was in writing and for a valuable consideration. Ran- dolph v. Harris, 28 Cal. 562. Assignment Not Denied. Where the complaint avers that defendant's note and mortgage to a railroad company 787 Specific Denials ANSWERS IN CODE PLEADING, and their Scope. Plaintiff's Eight to Sue. When the defendant means to deny or question the plaintiff's title, or his right to sue, he must do so explicitly. The courts will not help him by a liberal construction of his answer. 1 Contracts. Where the action is for a breach of contract, the denial is construed most liberally. The allegations of the denial are taken in their popular rather than in any technical sense. 2 Ownership and Possession- Allegations of ownership and possession in the complaint must be very explicitly denied. 3 Torts. In an action for tort the denial may consist of an aver- ment that the defendant did not commit the act charged, or that were sold, assigned, and delivered to plaintiffs by such company, and the answer merely alleges that said com- pany never indorsed said note to any person by writing its name thereon for that purpose, and that said company has at all times refused to indorse the note or to do any act which would make it negotiable, this is not a denial of the assignment by the company as alleged in the complaint, but merely a denial that such assignment was by indorsement. Murphy v. Dunning, 30 Wis. 296. But see Bennett v. Crowell, 7 Minn. 385; Kennedy v. Moore, 17 S. Car. 464 ; Williams v. Mellon, 56 Mo. 262. In Bennett v. Crowell, 7 Minn. 385, it was held that, in the case of a com- plaint on a note, a denial that the de- fendant "promised to pay plaintiff or order " raises a material issue. And in Williams v. Mellon, 56 Mo. 262, where the answer stated that "the said note was made without any consideration whatever," it was held to sufficiently raise the defense of no considera- tion. 1. Fosdick v. Groff, 22 How. Pr. (N. Y. Supreme Ct.) 158; Byington z/. Hogan, 58 Mo. 509. In Fosdick v. Groff, 22 How. Pr. (N. Y. Supreme Ct.) 158, it was held that a mere averment that the plaintiff is not the real party in interest does not deny the assignment of the cause of action to him. But see Dow v. Gould, etc., Silver Min. Co., 31 Cal. 630; Northern Pac. R. Co. v. McCormick, 55 Fed. Rep. 601, applying Montana law; Raymond v. Wimsette, 12 Mont. 55i. 2. Jones v. Eddy, 90 Cal. 147; De Wein v. Osborn, 12 Colo. 407; Corning v. Haight, I Code Rep. (N. Y. ) 71 ; Rob- inson v. Corn Exch., etc., Ins. Co., I Abb. Pr. N. S. (N. Y. Super. Ct.) 186; Reed v. Hayt, 109 N. Y. 659, 17 N. E. Rep. 418 ; Brennan v. Griffiths (City Ct.), iSN. Y. Supp. 145. Denial of Value. A paragraph in an answer denied "that the work, labor, and services so rendered, and the ma- terials so furnished, were of the value, and at the agreed price, in the aggre- gate, of eighty dollars" held, to raise the issue as to the value of the mate- rials and labor. Parker v. Tillinghast (City Ct.), i N. Y. St. Rep. 296. See Wahl v. Murphy (Ky., 1888), 9 S. W. Rep. 355- A Denial Construed. Where the alle- gation was that " the plaintiff never performed the services claimed at de- fendant's request, and defendant never promised to pay for any such ser- vices," held, an admission that the ser- vices were rendered as claimed, and that the question whether they were voluntary or were rendered at the de- fendant's request was alone in issue. Smiley v. Anderson, 28 Neb. 100. Contra. Where a complaint alleged that the "defendant was indebted to the plaintiff for money laid out and ex- pended by the plaintiff for the defend- ant at his request," giving a large num- ber of items; and the answer denied that "the plaintiff had laid out or ex- pended any money for the defendant except such sums as had been deliv- ered by him to the plaintiff for that purpose " held, that such answer was not a denial. Robbins v. Lincoln, 12 Wis. I. 3. Richardson v. Smith, 29 Cal. 530; Bothe v. Dayton, etc., R. Co., 37 Ohio St. 147. See Gillam v. Sigman, 29 Cal. 638. But see Meighen v. Strong, 6 Minn. 177, 80 Am. Dec. 441, where, in an action under the statute to deter- mine adverse claims to real estate, it was held that a denial of plaintiff's possession raised a material issue. 788 Allegations ANSWERS IN CODE PLEADING. Admitted. the fact alleged to exist does not exist. Such averments traverse the matters alleged and are good denials. 1 Deeds. The denial of the execution of a deed is the denial of its delivery. 2 Exiles of Construction Limited. A denial must not be evasive. The courts, under their most liberal construction, will not allow a denial to stand if there is room for argument that it was interposed as a mere quibble. 3 IV. ALLEGATIONS ADMITTED BY A FAILTJBE TO DENY!. Generally. It is an established rule of code pleading that all the material allegations of the complaint not denied by the answer are, for the purposes of the action, admitted. 4 1. Hill v. Smith, 27 Cal. 476. The rule given in the text will pre- vent a negative pregnant. Thus, w"here the allegation was that the de- fendant " wrongfully and unlawfully entered upon and dispossessed" plain- tiff, an answer which denied that " de- fendant wrongfully and unlawfully en- tered and dispossessed " plaintiff was held insufficient. Busenius v. Coffee, 14 Cal. 91. See Kinsey v. Wallace, 36 Cal. 463; Brooks v. Haslam, 65 Cal. 421. For Diversion of Water. If the com- plaint in an action to enjoin a diver- sion of water alleges that the plaintiff has appropriated and used the water for more than five years, and the an- swer denies that the plaintiff ever at any time used or took up or appropri- ated the water, the denial is sufficient. Wilkins v. McCue, 46 Cal. 656. See Jones v. St. John Irrigating Co., 2 Idaho 58. Slander. Where the petition in an action for slander alleges the effect of words spoken and the intent of the speaker to have been to charge plain- tiff with a crime, a denial that de- fendant intended to or did charge plaintiff with the commission of a crime by the language used raises a material issue. Wilkin v. Tharp, 55 Iowa 609. Defective Highway. In an action for injuries resulting from a defective highway, a denial in the answer, that on the day specified the highway was "in a dangerous condition to travel- ers exercising ordinary care and dili- gence," held not a sufficient denial that it was out of repair. Cuthbert v. Ap- pleton, 24 Wis. 383. 2. Thompson v. Lynch, 29 Cal. 189. But see Landers v. Bolton, 26 Cal. 394, where it seems to be held that a denial that the premises were conveyed is not a denial of the execution and delivery of a deed. The Original Instruments Required. The mere statement in an answer, that the originals of certain instruments are required, is not a denial. Murray v. New York L. Ins. Co., 85 N. Y. 236. Copy Hot a True One. When a peti- tion refers to the copy of an instru- ment as part thereof, an answer which avers that the defendant cannot state whether the copy is a true one, and calls for proof, is not, in form or sub- stance, a denial of a material allega- tion. Bentley v. Dorcas, n Ohio St. 398. 3. Fuhnz>. Weber, 38 Cal. 636, where the answer denied that there was such a street as the one mentioned in the complaint. See Finch v. Finch, 10 Ohio St. 501; Dendy v. Gamble, 59 Ga. 434; Williams v. Smith, 22 Wis. 594; Downer v. Read, 17 Minn. 493; Henry v. Hinman, 21 Minn. 378. 4. Ohio. Bradford v. Andrews, 20 Ohio St. 208, 5 Am. Rep. 645. Kentucky. Morton v. Waring, 18 B. Mon. (Ky.) 72. Wisconsin. Bonnell v. Jacobs, 36 Wis. 59; Marsh v. Pugh, 43 Wis. 597. loiva. Fargo v. Ames, 45 Iowa 494. Indiana. Lafayette v . Wortman, 107 Ind. 404. Nebraska. Harden v. Atchison, etc., R. Co., 4 Neb. 521; Dillon v. Russel, 5 Neb. 488; Williams v. Evans, 6 Neb. 218; Payne v. Briggs, 8 Neb. 78; Hanson v. Lehman, 18 Neb. 564; Linch v. State, 30 Neb. 740; Maxwell v. Higgins (Neb.), 57 N. W. Rep. 388. South Dakota. Calkins v. Seabury- Calkins Co. (S. Dakota), 58 N. W. Rep. 797. 789 Allegations ANSWERS IN CODE PLEADING. Admitted. 2. What are Material Allegations. Only those allegations in a complaint are material, within the meaning of this rule, which California. De Ro v. Cordes, 4 Cal. 118; Smith v. Eureka Flour Mills Co., 6 Cal. i; Anderson v. Parker, 6 Cal. 197; Osborn v. Hendrickson, 8 Cal. 31; Dewey v. Bowman, 8 Cal. 145; Thompson v. Lee, 8 Cal. 276; Walker v. Sedgwick, 8 Cal. 402; Curtis v. Richards, 9 Cal. 34; Humphreys v. Me Call, 9 Cal. 59, 70 Am. Dec. 621; San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Dennis v. Table Mountain Water Co., 10 Cal. 370; Stewart v. Street, 10 Cal. 373; White v. Moses, ii Cal. 70; Burke v. Table Mountain Water Co., 12 Cal. 403; Horn v. Vol- cano Water Co., 13 Cal. 62; Ord v. Steamer Uncle Sam, 13 Cal. 370; Gar- field v. Knight's Ferry, etc., Water Co., 14 Cal. 36; Busenius v. Coffee, 14 Cal. 91; Kinney v. Osborne, 14 Cal. 112; Powell v. Oullahan, 14 Cal. 115; Hensley v. Tartar, 14 Cal. 508; Smith v. Doe, 15 Cal. 101; Blankman v. Vallejo, 15 Cal. 639; Castro v. Wet- more, 16 Cal. 379; Kuhland v. Sedg- wick, 17 Cal. 123; Higgins v. Wortell, 18 Cal. 331; Patterson v. Ely, 19 Cal. 29; Mathewson v. Fitch, 22 Cal. 87; Woodworth v. Knowlton, 22 Cal. 164; McLaughlin v. Kelly, 22 Cal. 212; Levinson v. Schwartz, 22 Cal. 230; Ghirardelli v. McDermott, 22 Cal. 539; Towdy v. Ellis, 22 Cal. 651; Nelsons. Murray, 23 Cal. 338; Verzan v. Mc- Gregor, 23 Cal. 339; DeUprey v. De- Uprey, 23 Cal. 352; Rupley v. Welch, 23 Cal. 453; Hughes -v. Devlin, 23 Cal. 502; Morrill v. Morrill, 26 Cal. 289; Stoddard v. Treadwell, 26 Cal. 294 ; Landers v. Bolton, 26 Cal. 393; More v. Del Valle, 28 Cal. 170; Randolph v. Harris, 28 Cal. 562, 87 Am. Dec. 139; Cassacia v. Phoenix Ins. Co., 28 Cal. 629; Treadway v. Semple, 28 Cal. 653; Emery v. Bradford, 29 Cal. 75; Richardson v. Smith, 29 Cal. 530; Camden v. Mullen, 29 Cal. 565; Fitch v. Bunch, 30 Cal. 210; Blood v. Light, 31 Cal. 115; Fish v. Redington, 31 Cal. 186; Leffingwell v. Griffing, 31 Cal. 232; Burke v. Carruthers, 31 Cal. 468 ; Reed v. Calderwood, 32 Cal. 109; Pico v. Colimas, 32 Cal. 578; Burnett v. Stearns, 33 Cal. 468; Lightnerz/. Men- zel, 35 Cal. 452; Lee v. Figg, 37 Cal. 328, 99 Am. Dec. 271; Doll v. Good, 38 Cal. 287; Fuhn v. Weber, 38 Cal. 636; DeGodey v. Godey, 39 Cal. 157; Taylor v. Shew, 39 Cal. 536, 2 Am. Rep. 478; Patterson v. Sharp, 41 Cal. 133; Gregory v. Nelson, 41 Cal. 278; Scott v. Umbarger, 41 Cal. 410; Fee- ley -v. Shirley, 43 Cal. 369; Hellman v. Howard, 44 Cal. 100; Huston v. Twin, etc., Turnpike R. Co., 45 Cal. 550; Bradbury v. Cronise, 46 Cal. 287; Jones v. Spears, 47 Cal. 20; Howard v. Throckmorton, 48 Cal. 482; Leroux v. Murdock, 51 Cal. 541; Manly v. Hewlett, 55 Cal. 94; Marsters v. Lash, 61 Cal. 622; Young v. Miller, 63 Cal. 302; Walker v. Buffandeau, 63 Cal. 312; Grossini v. Perazzo, 66 Cal. 545; Pomeroy v. Gregory, 66 Cal. 572; Campe v. Lassen, 67 Cal. 139; Taylor v. Central Pac. R. Co., 67 Cal. 165; Taylors. Middleton, 67 Cal. 656; Han- son v. Fricker, 79 Cal. 283. Missouri. Whittlesey v. Broham- mer, 31 Mo. 98; Breckinridge v. American Cent. Ins. Co., 87 Mo. 62; Shockley v. Fischer, 21 Mo. App. 551; Thomas v. Liebke, 13 Mo. App. 389. And see other cases cited in this section. Duty of Court to Instruct. The plain- tiff may ask the court to instruct the jury that the material allegations of the complaint not denied are admitted; and it is the duty of the court to so instruct. Steele v. Russell 5 Neb. 211. Proper [Mode to Make Admission. Under the code system of pleading, an answer must either deny allega- tions found in the complaint or state new matter, and the proper mode of making an admission is by silence. Gould v. Williams, 9 How. Pr. (N. Y. Supreme Ct.) 53. Judgment on the Pleadings. When the answer fails to put in issue the al- legations of the complaint, the plain- tiff is entitled to judgment on the plead- ings without evidence. Smith v. Faust, I Utah 90; Wallace v. Baisley, 22 Ore- gon 572. Equivalent to Demurrer. An answer which controverts no material allega- tion of fact in the complaint should be regarded as a demurrer. Charlotte, etc., R. Co. v. Gibbes, 23 S. Car. 370. Amendment and Withdrawal. Aver- ments of an amended complaint, which are not denied by the amended an- swer, stand as admitted. Putnam v. Lyon, 3 Colo. App. 144. And where an answer is withdrawn 790 Allegations ANSWERS IN CODE PLEADING. Admitted. the plaintiff must prove upon the trial in order to maintain his action. 1 No allegation in a complaint should be held "material" which will not prevent a plaintiff from recovering if proved to be untrue, or which when denied he is not obliged to prove to entitle himself to a verdict. 2 3. Denial of Immaterial Allegations. Immaterial averments need not be denied. They are not admitted by a failure to deny. 3 the traversable allegations of the peti- tion are admitted. Price v. Page, 24 Mo. 65. See Robinson v. Lawson, 26 Mo. 69. Neither Admitted nor Denied. Where an answer neither admits nor denies an allegation, the allegation is ad- mitted. Anderson v. Parker, 6 Cal. 197. Nullifying the Effect of an Admission. Affirmative matter of defense plead- ed may nullify the effect of an admis- sion by failure to deny. Newell v. Doty, 33 N. Y. 83; Sands v. St. John, 36 Barb. (N. Y.) 628. But, conversely, an admission by an attorney of record of the correctness of an amount due, for which judgment is taken, when not done in fraud of the rights of his client, destroys the effect of a denial in the answer. Tay- lor v. Randall, 5 Cal. 80. Redundant Denials. The denial of a material fact raises an issue, though accompanied by further insufficient denials. Craig v. Bateman, 49 Cal. 7i. Idaho In Idaho a general denial is a nullity when the complaint is veri- fied; therefore a failure to deny spe- cifically each material allegation of a verified complaint admits the truth of the allegation. Norris v. Glenn, I Idaho 590. Iowa. Likewise in Iowa the func- tion of a general denial has been much curtailed. A general denial by a de- fendant, in an action on a contract, of each and every allegation in a peti- tion which sets forth the contract, and avers that the plaintiff has duly per- formed all the conditions on his part to be performed, admits the perform- ance of a condition precedent in the contract, that the plaintiff should de- posit a sum of money for his faithful performance thereof. Halferty v. Wilmering, 112 U. S. 713. See also Mayes v. Turley, 60 Iowa 407; Steer v. City, 41 Iowa 353; Coates v. Galena, etc., R. Co., 18 Iowa 277; Blackshire v. Iowa Homestead Co., 39 Iowa 624; Gates v. Carpenter, $3 Iowa 152. 1. Fry v. Bennett, 5 Sandf. (N. Y.) 54. Where a complaint in a foreclo- sure suit alleges that the defendants did "execute under their hands and seals, and deliver," the mortgage, an answer of one of the defendants, deny- ing that she executed the mortgage referred to, is sufficient to put in issue the fact of the delivery and every other fact necessary to its execution, although no specific denial of the de- livery is made. Le Mesnager v. Hamilton, 101 Cal. 533. 2. Oechs v. Cook, 3 Duer (N. Y.) 161. " Every allegation in a pleading at law which might be put in issue by the adverse party was always taken as true if not denied. And it is in this sense that the term ' material allegation ' is used in that section [168 of the Code]. It means an allega- tion without proof of which the plain- tiff must fail in his action. All such allegations may be denied. They were formerly put in issue by the general issue, and no others were put in issue by that plea; and those, and no others, were admitted by being left unan- swered." Per Woodruff, J. , in Connoss v. Meir, 2 E. D. Smith (N. Y.) 316. Allegations Anticipating a Defense. Allegations inserted for the purpose of intercepting and cutting off an an- ticipated defense are superfluous and immaterial, and do not require an answer. Canfield v. Tobias, 21 Cal. 349- 3. Canfield v. Tobias, 21 Cal. 349; Doyle v. Franklin, 48 Cal. 537; Pink v. Catanich, 51 Cal. 420; Adams Ex- press Co. v, Darnell, 31 Ind. 22; Baker v. Kistler, 13 Ind. 63. An answer to immaterial matter is frivo- lous, and raises no issue. Goldstein v. Krause, 2 Idaho 273; Leffingwell v. Griffing, 31 Cal. 232; Elder v. Spinks, 53 Cal. 293; Hunter v. Martin, 57 Cal. 365; Kidder v. Stevens, 60 Cal. 414. Failure to State a Cause of Action. If a complaint contains more than one count, and one of the counts does not state a cause of action, the answer need not deny the allegations of such 791 Allegations ANSWERS IN CODE PLEADING. Admitted. 4. Findings. There is no necessity of a finding by the court as to a fact admitted by the pleadings. 1 5. Evidentiary Matters. Allegations of matters of evidence are not issuable facts. They are not admitted by a failure to deny. 2 6. Value and Damages. Allegations of value in a pleading are not to be taken as true because of a failure to deny them. 3 And count, and objections may be made to it for the first time in the appellate court. Haskell v. Moore, 29 Cal. 437. Striking Out Denial. If immaterial allegations are denied, the court will not strike out the denial. King v. Utica Ins. Co., 6 How. Pr. (N. Y. Su- preme Ct.) 485. Immaterial Denials. The denial it- self may be immaterial without refer- ence to anything in the complaint. Thus, for the purpose of an action on a contract, the allegation of the con- tract in the complaint, if not contro- verted by the answer, is to be taken as true, and the allegation in the an- swer of a different contract has no effect. Marx v. Gross (Super. Ct.), 22 N. Y. Supp. 393. Leave to amend and insert an im- material denial may be refused. New- man v. Springfield F., etc., Ins. Co., 17 Minn. 123. 1. Swift v. Muygridge, 8 Cal. 445; Grossini v. Pirazzo, 66 Cal. 545; Pomeroy v. Gregory. 66 Cal. 572; Walkers. Brem, 67 Cal. 599; Taylor v. Central Pac. R. Co., 67 Cal. 615; Bur- net v. Stearns, 33 Cal. 468; Gregory v. Nelson, 41 Cal. 279; Bradbury v. Cronise, 46 Cal. 287; McDonald v. Mission View Homestead Assoc., 51 Cal. 210; Tracy v. Craig, 55 Cal. 91. And if the court finds contrary to the facts admitted by the answer, the find- ing must be disregarded. Bradbury v. Cronise, 46 Cal. 287. And a find- ing which negatives the existence of a fact admitted by the pleadings is a finding against evidence, and the judgment is erroneous. Silvey v. Neary, 59 Cal. 97; Campe v. Lassen, 67 Cal. 139; Walker v. Brem, 67 Cal. 599- An appellate court will not look to a bill of exceptions for the purpose of ascertaining whether a finding based upon a failure to answer is sustained by the proof made. Moore v. Saubo- rin, 42 Mo. 495. 2. Edmunds v. St. Louis R. Co., 3 Mo. App. 603; Moore v. Murdock, 26 Cal. 515; Siter v. Jewett, 33 Cal. 93; Nudd v. Thompson, 34 Cal. 39; Lowell v. Lowell, 55 Cal. 316; Racouillat v. Rene, 32 Cal. 455. When an ultimate fact is admitted on the record, probative facts tending to establish, modify, or overcome it will not be considered by the court. Mulford v. Estudillo, 32 Cal. 131. Aggravation. Circumstances of ag- gravation are not traversable. Schna- derbeck v. Worth, 8 Abb. Pr. (N. Y. Supreme Ct.) 37; Gilbert v. Rounds, 14 How. Pr. (N. Y. Supreme Ct.)46; Lane v. Gilbert, 9 How. Pr. (N. Y. Supreme Ct.) 150; Poland -v. Johnson, 16 Abb. Pr. (N. Y. Supreme Ct.) 235; Saltus v. Kipp, 5 Duer (N. Y.) 646; Maretzek v. Cauldwell, 2 Robt. (N.Y.), 715. Deraignment of Title. Averments in the complaint of the facts constituting a deraignment of title are but aver- ments of evidence, and are not admit- ted by a failure to deny them in the answer. Siter v. Jewett, 33 Cal. 93. See Moore v. Murdock, 26 Cal. 525. 3. Campbell v. Brosius, 36 Neb. 792; Jenkins v. Steanka, 19 Wis. 126, 88 Am. Dec. 675; Connoss v. Meir, 2 E. D. Smith (N. Y.) 314; McKensie v. Farrell, 4 Bosw. (N. Y.) 202; Butter- worth v. Kennedy, cited in 4 Bosw. (N. Y.) 202; Starr v. Cragin, 24 Hun (N. Y.) 177; Wood v. Steamboat, 19 Mo. 529; Field v. Barr, 27 Mo. 417. Quantum Meruit. In all cases found- ed upon a quantum meruit, where the value of the services is not expressly admitted, the question of value is in issue and must be proved. Campbell v. Brosius, 36 Neb. 792. Trover, Trespass, and Replevin. In trover, trespass, or replevin it is not necessary for the defendant to deny the value alleged in the complaint. Jenkins v. Steanka, 19 Wis. 126, 88 Am. Dec. 675; Connoss i>. Meir, 2 E. D, Smith (N. Y.) 314; McKensie v. Farrell, 4 Bosw. (N. Y.) 202; Butter- worth -v. Kennedy, cited in 4 Bosw. (N. Y.) 202; Starr v. Cragin, 24 Hun (N. Y.) 177; Wood v. Steamboat, 19 Mo. 529; Field v. Barr, 27 Mo. 417. 792 Allegations ANSWERS IN CODE PLEADING. Admitted. in an action to recover unliquidated damages, the allegations of damage are not traversable. 1 7. Time. Generally, allegations of time are not admitted by a failure to deny them. 2 8. Legal Conclusions. Legal conclusions need not be denied. 3 9. Possession and Ownership. Where a complaint makes an alle- gation of actual possession of property, the mere denial of pos- session admits actual possession. 4 And an answer in an ejectment Amounts to No Denial. The denial of the value of property sued for in the terms of the allegation is evasive, and in fact is no denial at all. Marsters v. Lash, 61 Cal. 622. Value Material. But where the value of a thing sued for is material, the allegation of value must be denied. Thus, in an action upon one of several insurance policies on a steamboat, the averment that she was worth more than all the insurance thereon is a material averment, and if not denied in the answer stands admitted. Mar- shall v. Thames F. Ins. Co., 43 Mo. 586. Where the question of value is ma- terial, and the defendant wants to con- trovert it, he must allege that the ar- ticle is of no value, or of such value as he claims it to be. Lynd v. Picket, 7 Minn. 184, 82 Am. Dec. 79. See Ames v. First Division St. Paul R. Co., 12 Minn. 412, where the form of a denial of value was approved. See also Burt v. McKinstry, 4 Minn. 204, 77 Am. Dec. 507; Dean v. Leonard, 9 Minn. 190; Hecklin v. Ess, 16 Minn. 51; Pottgieser z>. Dorn, 16 Minn, 204; Moulton v. Thompson, 26 Minn. 120; and Coleman v. Pearce, 26 Minn. 123, where the denials were held bad be- cause they were negatives pregnant. Utah. Allegations in a sworn com- plaint of value and damage not spe- cifically denied in the answer are ad- mitted. It is not error to so instruct the jury. Snell v. Crowe, 3 Utah 26. 1. Hackett v. Richards, 3 E. D. Smith (N. Y.) 13; Connoss v. Meir, 2 E. D. Smith (N. Y.) 314; Raymond v. Traffarn, 12 Abb. (Justices' Ct. N. Y.) 52; German-American Bank v. White, 38 Minn. 471 ; Pullen v. Wright, 34 Minn. 314. But allegations of damage, like al- legations of value, may be material, and when so they must be denied. Thus, where in an ejectment action the complaint avers that the value of the use and occupation of the premises is a certain sum, this is a material allegation which, if not specifically denied, is admitted. Patterson v. Ely, 19 Cal. 29. And see McLaughlin v. Kelly, 22 Cal. 212; Snell v. Crowe, 3 Utah 26. 2. The date when an account sued upon accrued is not a material aver- ment, and is not admitted by a failure to deny it. Sutler v. Streit, 21 Mo. 157- Where the petition upon a me- chanic's lien alleged that ten days' notice had been given, as required by law, and the answer took issue on the sufficiency of the notice generally, the allegation as to time was admitted. Gorman -v. Dierkes, 37 Mo. 576. 3. Larson v. Oregon R., etc., Co., 19 Oregon 240. Where a complaint demands an ac- counting, without showing that plain- tiff is entitled thereto, defendant, in order to raise the objection on the trial, is not required to deny in his answer the right to such acccounting. Nutting -v. Atwood (Super. Ct.), 23 N. Y. Supp. 816. What Are Not Legal Conclusions. The word " duly " means in a proper way, or regularly, or according to law; when used in a pleading it is some- times a fact and sometimes a legal conclusion. Thus the allegations of a complaint, that the plaintiff duly made and filed protest, and duly ap- pealed to the Secretary of the Treas- ury, and that the suit was brought in time, not denied in the answer, are to be taken as true. Robertson v. Per- kins, 129 U. S. 233. An allegation that a mortgage was duly recorded will be taken as true where it is not denied. Livesey v. Brown, 35 Neb. in. Where the answer denies that a notice was served as required by law, the fact of notice is admitted; the law- fulness thereof is alone in issue. See- ding v. Bartlett, 35 Mo. 90. 4. Churchill v. Bennett, 8 How. Pr. (N. Y. Supreme Ct.) 309. 793 Allegations ANSWERS IN CODE PLEADING. Admitted. suit, which denies the unlawful entry of defendant, admits poses- sion. 1 As the matter to be decided in an ejectment suit is not that of title, but whether the defendant unlawfully withholds possession from the plaintiff, the denial of an allegation of owner- ship is not equivalent to a denial that the defendant unlawfully withholds possession. Where an allegation of unlawful with- holding is in the complaint, it must be denied.* Ownership is a fact distinct from the method of its acquisition ; and allegations of ownership must not be confounded with those showing the manner in which it was acquired : a denial of the latter allegation is not a denial of the former. 3 10. Notes, Bills, and Other Instruments. In actions on notes and bills and other written instruments allegations of execution and indorsement are material, and are admitted unless denied. 4 Where the complaint avers generally that the plaintiff faith- fully complied with the terms of the contract, and the answer does not deny this allegation, evidence that there was a breach of the terms of the contract is not admissible. 5 The allegation of an instrument as having a certain legal effect will be conclusive unless denied. 6 1. Tomlinson v. Lynch, 32 Mo. 160. Where the complaint in an eject- ment suit describes the land, and the denial contains a different description, the plaintiff is entitled to a judgment on the pleadings, for, the boundaries set out in the pleadings being unlike, all the allegations could be true. Hadden v. Mannin (Ky., 1893), 21 S. W. Rep. 38. 2. Tyson v. Shepherd, 90 N. Car. 314. Compare Gilchrist v. Middleton, 107 N. Car. 664; Lupo v. True, 16 S. Car. 579; Lee v. Figg, 37 Cal. 328; Howard v. Singleton (Ky., 1893), 22 S. W. Rep. 337; Cotzhausen v. Kaeh- ler, 42 Wis. 332: Burke v. McDonald, 2 Idaho 646. The denial of the withholding pos- session must refer to the time men- tioned in the complaint. Where the answer merely alleged that the de- fendant "is not in possession" of the land, it was held that the allegation of the complaint must be taken as confessed. Schenk v. Evoy, 24 Cal. 105. Where, in an action to recover pos- session of land, the defendant answers admitting the possession, but denying the plaintiff's title, he cannot, without an amendment of the pleadings, after- ward disclaim title and possession, and put the plaintiff to proof of the adverse possession. Graybeal v. Powers, 83 N. Car. 561. 3. Wilson -v. Murphy, 45 Mo. 409, where the answer was construed by the court, not to deny title to the note, but only to deny the manner of acquir- ing it. Compare Brown v. Ryckman, 12 How. Pr. (N. Y. C. PI.) 313; Felch v. Beaudry, 40 Cal. 439; De Loge v, Hall, 31 Mo. 473; Emory v. Phillips, 22 Mo. 499. 4. Flood v. Reynolds, 13 How. Pr. (N. Y. Supreme Ct.) 112. Where the defendant denied sign- ing the note sued on, and also alleged "that if it [the signature] is genuine, then it was procured through fraud," held, an admission of the signing of the note. Dinsmore v. Stimbert, 12 Neb. 434. And where the defendant pleaded that he did not execute the note sued on, but did execute one like that de- scribed in the petition, but with cer- tain additions thereto, held, that the execution of the note was admitted. Kinman v. Cannefax, 34 Mo. 147. See also Ramsay v. Barnes (C. PI.), 12 N. Y. Supp. 726; San Francisco v. Staude, 92 Cal. 560. 5. Cassacia v. Phoenix Ins. Co., 28 Cal. 629, where the fact that gun- powder was kept in violation of the terms of an insurance policy was held immaterial, as the defendant had not denied the allegation of the complaint that the plaintiff had faithfully com- plied with all the terms of the policy. 6. Coffin v. Grand Rapids Hydraulic 794 Allegations ANSWERS IN CODE PLEADING. Admitted. In some states provision is made by statute to the effect that when a written instrument is referred to in a pleading, or the suit is on such instrument, the signature thereto shall be deemed genuine and admitted unless specifically denied under oath. 1 11. Libel and Slander. Allegations in a complaint, relative to the intent and motives of a libellous publication, are not to be deemed material, so as to render it necessary for the defendant to admit or controvert them in his answer. 2 12. Sales. In an action to recover the price of goods sold, the answer must deny the allegation of sale; merely denying the indebtedness admits the sale and delivery. 3 13. Release and Payment. A plea of release and payment of a claim admits its validity. 4 Carle v. Cornell, n Iowa 374; Loomis v. Metcalf, 30 Iowa 382; Hall v. ^Etna Mfg. Co., 30 Iowa 215; Douglass v. Matheny, 35 Iowa 112; Sheldon v. Middleton, 10 Iowa 17; Lyon v. Bunn, 6 Iowa 49; Seachristz/ Griffith, 6 Iowa 390; Terhune v. Henry, 13 Iowa 99; Fannon v, Robinson, 10 Iowa 272; Lake v. Cruikshank, 31 Iowa 395; Hay v. Frazier, 49 Iowa 454; Sankey v. Trump, 35 Iowa 267; Brayley v. Hedges, 52 Iowa 623; Sully v. Gold- smith, 49 Iowa 690; Farmers', etc., Bank v. Young, 36 Iowa 44; Brewer v. Crow, 4 Greene (Iowa) 520; Templin v. Rothweiler, 56 Iowa 259. And see section X of this article; also U. S. v. Alexander, 2 Idaho 354; Heath v. Lent, i Cal. 410. 2. Fry v. Bennett, 5 Sandf. (N. Y.) 54- And in an action for slander for speaking words actionable per se, an allegation in the complaint, that before the speaking of the alleged slanderous words the plaintiff had sustained a good name and reputation among his neighbors, is superfluous, and need not be denied. Pink v. Catanich, 51 Cal. 420. 3. Lee v. Casey, 39 Mo. 383. In an action for the price of a quan- tity of goods sold, the answer alleged that the sale was by sample, and that a specified quantity was not according to the sample, and denied all the alle- gations of the complaint not admitted. Held, that the quantity sold was not admitted. Youngs v. Kent, 46 N. Y. 672. 4. Blumenthal v. Mugge, 43 Mo. 427. Where, in an action for the recovery of damages, the defendant pleads accord and satisfaction, and the repli- Co. (Super. Ct.), 18 N. Y. Supp. 782, where it was held that where an obli- gation is declared on as a promissory note, and the answer does not dispute the allegation in that regard, defend- ant cannot raise the objection that the note is a conditional agreement for the payment of money. 1. Iowa Code, 2730; Wagner Sts. Mo. p. 1046, 45. Under this statute the signature to an assignment of a judgment is admitted unless specifi- cally, denied. Edmonds v. Montgom- ery, i Iowa 143. This statutory pro- vision is applicable in an action against a guarantor of a note, Partridge v. Patterson, 6 Iowa 514; and in the case of city warrants, Clark v. Des Moines, 19 Iowa 199; and in county warrants, Clark v. Polk County, 19 Iowa 248. But where notes purporting to have been executed by an agent are sued on, the ordinary denial of their exe- cution, without verification, is suffi- cient. Pope v. Risley, 23 Mo. 185. See also the following cases in con- struction of these statutes: Parker v. Simpson, i Mo. 539; Bates v. Hinton, 4 Mo. 78; Klein v. Keys, 17 Mo. 326; Anderson v. Hance, 49 Mo. 159; Car- penter v. Lathrop, 51 Mo. 487; State v. Chamberlin, 54 Mo. 338; Corby v. Weddle, 57 Mo. 452; Hammerslough v. Chatham, 84 Mo. 13; McQuade v. St. Louis, 9 Mo. App. 586; Patrick v. Boonville Gas Light Co., 17 Mo. App. 462; Smith v. Rembaugh, 21 Mo. App. 390; Rothschild v. Frensdorf, 21 Mo. App. 318; McGill v. Wallace, 22 Mo. App. 675; Curry v. Sioux City Dist. Tp., 62 Iowa 102; Miller v. House, 67 Iowa 737; Ashworth v. Grubbs, 47 Iowa 353; Walker v. Sleight, 30 Iowa 310; Robinson v. Lair, 31 Iowa, 9; Thompson v. Abbott, n Iowa 193; 795 Negatives ANSWERS IN CODE PLEADING. Pregnant. 14. Pleading a Different Contract or Tort. Where a contract or tort is set out in the complaint, an answer setting up another contract or tort, without denial of the allegations of the com- plaint, is an admission of the contract or tort set up in the com- plaint. 1 15. Mandamus. The pleadings in mandamus proceedings have the same effect and are to be construed as those in civil actions. A material allegation in the petition, not denied, is admitted.* 16. Divorce Proceedings. In divorce proceedings it is the policy of the state to compel the plaintiff to prove the allegations of the complaint, whether denied or not ; hence, in these cases, the rule that a material allegation not denied is admitted does not obtain. 3 17. Allegations of Status and Capacity. Allegations of status and capacity, such as that the plaintiffs are partners, or a corporation, are material ones, which are admitted unless denied. 4 V. NEGATIVES PREGNANT.!. Generally. A negative pregnant is that form of a denial which implies an affirmative. The objection to this form of a denial is that it is ambiguous. 5 A negative preg- nant can only arise by the interposing of a specific denial. A general denial puts in issue every allegation in the pleading to which it is a denial. It can never be construed as a negative pregnant. 6 The general rule is that if the denial is a negative cation denies that "in consideration of the payment of seventy-five dollars, or any other sum, and the surgeon's fee " mentioned in the answer, the plaintiff " accepted the same in full satisfaction and discharge of the dam- ages," etc., held, that while this is an admission of the payments, it is a denial of acceptance in discharge of the damages claimed. O'Rileyz'. Wil- son, 4 Oregon 97. 1. East River Electric Light Co. v. Clark (C. PL), 18 If. Y. Supp. 463; Schnaderbeck v. Worth, 8 Abb. Pr. (N. Y. Supreme Ct.) 37. See /AT/, VI. ARGUMENTATIVE DENIALS. 2. State v. Hawes, 43 Ohio St. 16, where the petition alleged that a cer- tain bill of exceptions tendered to a judge to sign was a true bill, and the alternative writ commanded him to sign the same or show cause why he did not, and by his answer he did not deny this allegation, and it was held that this was an admission that the bill was true. 3. Bennett v. Bennett, 28 Cal. 600. 4. Teller v. Hartman, 16 Colo. 447; Elliott v. Espenhain, 54 Wis. 231 ; Haberkorn v. Hill (Supreme Ct.). 2 N. Y. Supp. 243. Compare Brandt v. Shepard, 39 Minn. 454; Rock Island Lumber, etc., Co. v. Fairmount Town Co., 51 Kan. 394. See also post, section X. WHAT MAY BE PROVED UNDER A GENERAL DENIAL. 5. Bliss Code PI. 332. " It is under this head of ambiguity that the doctrine of negatives pregnant appears most properly to range itself. A negative pregnant is such a form of negative expression as may imply or carry within it an affirmative. This is con- sidered as a fault in pleading; and the reason why it is so considered is that the meaning of such a form of expres- sion is ambiguous." Stephen PI. (Tyler's ed.) 335. 6. German-American Bank v. White, 38 Minn. 471. But the following cases hold that a general denial of the value stated in the complaint is insufficient, and is a negative pregnant. Steele z/.Thayer, 36 Minn. 174; Coleman v. Pearce, 26 Minn. 123; Moulton -v. Thompson, 26 Minn. 120; Pottgieser v. Dorn, 16 Minn. 204; Hecklin v. Ess, 16 Minn. 51; Durfee v. Pavitt, 14 Minn. 424; Dean v. Leonard, 9 Minn. 190; Lynd v. Picket, 7 Minn. 184, 82 Am. Dec. 79. A general denial in an answer of the 796 Negative ANSWERS IN CODE PLEADING. Pregnant. pregnant it amounts to no denial at all, and the allegations of the complaint are treated as admitted. 1 2. Conjunctive Denials. If several material facts are stated con- junctively in a complaint, an answer which undertakes to deny these averments as a whole, as conjunctively stated, is evasive, and is an admission of the averments thus attempted to be denied. 2 Merchants' Nat. Bank v. Richards, 6 Mo. App. 454, 74 Mo. 77. See also Wynn v. Cory, 43 Mo. 304; First Nat. Bank v. Hogan, 47 Mo. 472; Ells v. Pacific R. Co., 55 Mo. 278. 2. Hopkins v. Everett, 6 How. Pr. (N. Y. Supreme Ct.) 159; Young v. Catlett, 6 Duer (N. Y.) 437; Metropoli- tan Bank v. Lord, i Abb. Pr. (N. Y. Super. Ct.) 185; Pullen v. Wright, 34 Minn. 315; Fish v. Redington, 31 Cal. 186; Burke v. Table Mountain Water Co., 12 Cal. 407; Busenius v. Coffee, 14 Cal. 91; Smith v. Doe, 15 Cal. 101; Blankman v. Vallejo, 15 Cal. 639; Castro v. Wetmore, 16 Cal. 379; Kuh- land v. Sedgwick, 17 Cal. 123; Caul- field v. Sanders, 17 Cal. 569; Higgins v. Wortell, 18 Cal. 331; Wells v. Mc- Pike, 21 Cal. 216; Woodworth v. Knowl- ton, 22 Cal. 164; Ghirardelli v. McDer- mott, 22 Cal. 539; Towdy v. Ellis, 22 Cal. 651; Nelson v. Murray, 23 Cal. 338; Lay v. Neville, 25 Cal. 546; Morrill v. Morrill, 26 Cal. 289; Stoddard v. Tread- well, 26 Cal. 303; Landers v. Bolton, 26 Cal. 393; Moore v. Del Valle, 28 Cal. 170; Randolph v. Harris, 28 Cal 562, 87 Am. Dec. 139; Richardson v. Smith, 29 Cal. 530; Camden v. Mullen, 29 Cal. 565; Fitch v. Bunch, 30 Cal. 209; Blood v. Light, 31 Cal. 115; Leffingwell v. Griffing, 31 Cal. 232; Burke v. Carruth- ers, 31 Cal. 468; Reed v. Calderwood, 32 Cal. 109; Kinsey v. Wallace, 36 Cal. 462; Doll v. Good, 38 Cal. 287; De Godey v. Godey, 39 Cal. 157; Feely v. Shirley, 43 Cal. 369; Huston v. Tuein, etc., Turnpike Co., 45 Cal. 550; Brad- bury v. Cronise, 46 Cal. 287; Leroux v. Murdock, 51 Cal. 541; Masters v. Lash, 61 Cal. 622; Young v. Miller, 63 Cal. 302. Court May Instruct for Plaintiff. Where there is only a conjunctive de- nial the court may instruct the jury to find for the plaintiff. Kuhland v. Sedgwick, 17 Cal. 123. Alternative Denial. A denial in the alternative form is bad. Otisz>. Ross, 8 How. Pr. (N. Y. Supreme Ct.) 193, where the denial was that the defend- ant made this representation or that. allegations in a complaint, "that be- fore the maturity of said note the said A. M., for value received, sold, trans- ferred, indorsed, and delivered it to plaintiff," puts in issue only the time, not the fact, of transfer. Frasier v. Williams, 15 Minn. 288. Compare Mc- Clung v. Bergfeld, 4 Minn. 148; Burt v. McKinstry, 4 Minn. 204, 77 Am. Dec. 507; Morton v. Jackson, 2 Minn. 219. A general denial is the same in effect as a specific denial of each of the alle- gations in the whole or in the part of the pleading so denied, and is a nega- tive pregnant only where a mere spe- cific denial would be. Stone v. Quaal, 36 Minn. 46. 1. Kay v, Whittaker, 44 N. Y. 565; Young v. Catlett, 6 Duer (N. Y.)43g; Baker v. Bailey, 16 Barb. (N. Y.) 54; Moser v. Jenkins, 5 Oregon 447; Sco- vill v. Barney, 4 Oregon 288; Mulcahy v. Buckley, 100 Cal. 484; Blankman v. Vallejo, 15 Cair638; Kuhland v. Sedg- wick, 17 Cal. 123; Caulfield v. Sanders, 17 Cal. 569; Woodworth v. Knowlton, 22 Cal. 164; Landers v. Bolton, 26 Cal. 393; Bradbury v. Cronise, 46 Cal. 287; Larney v. Mooney, 50 Cal. 610; Harden v. Atchison, etc., R. Co., 4 Neb. 521. And see the cases under other para- graphs of this section. Good unless Objected to. But some authorities hold that the objection that a denial is a negative pregnant is a formal one, and that unless the objec- tion is made before trial it will be waived, and the allegation regarded as controverted. Elton v. Markham, 20 Barb. (N. Y.) 347; Lawrence v. Will- iams, I Duer (N. Y.) 585; Parker v. Tillinghast (City Ct.), I N. Y. St. Rep. 296; Otis v. Ross, 8 How. Pr. (N. Y. Supreme Ct.) 193; Pfandler Process Fermentation Co. v. McPherson (Su- preme Ct.), 20 N. Y. St. Rep. 473; Doo- little v. Greene, 32 Iowa 123. The remedy is by motion to make the denial more definite and certain. Wall v. Buffalo Water Works Co., 18 N. Y. 120. Missouri. The doctrine of a negative pregnant is not recognized in Missouri. 797 Negatives ANSWERS IN CODE PLEADING. Pregnant. 3. Literal Denials. An answer which confines itself to denying in ipsis verbis the allegations of the complaint, and does not at- tempt to deny their substance or spirit, is bad as being evasive and tendering immaterial issues. 1 Particular Amount. The denial that the particular amount claimed is due, or that the exact sum was received, is a negative pregnant. 2 Wrongfully and Maliciously. If the complaint alleges that an act was wrongfully and maliciously done, a denial in the answer that it was wrongfully and maliciously done does not put in issue the doing of the act, but only its wrongful character. 3 See Corbin v. George, 2 Abb. Pr. (N. Y. Supreme Ct.) 465; Salters v. Genin, 8 Abb. Pr. (N. Y. Super. Ct.) 253. Separate Parargaphs. An answer must controvert separately and specifi- cally the charge made in each para- graph of the petition. Morgan v. Booth, 13 Bush (Ky.) 480. What Constitutes a Conjunctive Denial. The mere fact that the answer makes use of the copula "and" does not necessarily make the denial a conjunc- tive one. Thus, an allegation in the complaint that the defendants "as- sumed and agreed " to pay a debt is not a statement of two distinct propo- sitions, but the two words "assumed " and "agreed" are synonymous, and a denial that the defendants "assumed and agreed" to pay the debt is not a conjunctive denial. Jones v. Eddy, 90 Cal. 147. See Livingston v. Hammer, 7 Bosw. (N. Y.) 670; First Nat. Bank v. Hogan, 47 Mo. 472. 1. Rock Spring Co. v. Salt Lake Sanitarium Assoc., 7 Utah 158; James v. McPhee, 9 Colo. 486; Caulfield v. Sanders, 17 Cal. 569; Higgins v. War- tell, 18 Cal. 331; Landers v. Bolton, 26 Cal. 393; Seward v. Miller, 6 How Pr. (N. Y. Supreme Ct.) 312 ; Moody v. Belden (Supreme Ct.), 15 N. Y. Supp. 119; Miller v. Miller, i Abb. N. Cas. (N. Y. Supreme Ct.) 30; Moser v. Jenkins, 5 Oregon 448; Norris v. Glenn, i Idaho 590; Robbins v. Lincoln, 12 Wis. i; Burdick v. Briggs, n Wis. 126; Cuth- bert v. Appleton, 24 Wis. 383; Miller v. Brunbaugh, 7 Kan. 343; Dare v. Pa- cific R. Co., 31 Mo. 480. But this last case is overruled by Merchants' Nat. Bank v. Richards, 74 Mo. 77. See Emory v. Phillips, 22 Mo. 499; Ells v. Pacific R. Co., 55 Mo. 278. Where an answer denied the allega- tion of the complaint that the "bond and mortgage " contained such a con- dition, "as by reference to the record of said mortgage will more fully ap- pear " held, not a denial that such was the condition of the bond, and that it did not put in issue the allega- tion of the complaint that the whole amount secured had become due. Kay v. Whittaker, 44 N. Y. 565. Likewise, in an action to recover for work and labor alleged to have been done at the request of defendant, an answer denying that the labor was performed at the request of the de- fendant is not a denial that the work was performed. Bradbury v. Cronise, 46 Cal. 287. For further illustrations of the prin- ciple that a literal denial is evasive and tenders no issue, see Dimon v. Dunn, 15 N. Y. 498; Fuhn v. Weber, 38 Cal. 636; De Godey v. Godey, 39 Cal. 157; Gammon v. Dyke, 2 Wash. Ter. 266. 2. Conway v. Clinton, i Utah 215; Dillon z/. Spokane County, 3 Wash. Ter. 498. A denial that property sued for is of the exact value alleged is an admission of any less value. Scovill v. Barney, 4 Oregon 289. Where the complaint alleged that the defendant received a certain sum in gold coin, a denial that the amount was received in " gold coin " raises no issue. Leffingwell v. Griffing, 31 Cal. 232. But where the answer averred that the value of the labor " was not over the sum of fifteen dollars or twenty dollars," it was held that this was a denial that the value of the labor was seventy-six dollars, the amount sued for, and that the answer should not be stricken out. Way v. Oglesby, 45 Cal. 655. 3. Kinsey v. Wallace, 36 Cal. 462; Feely v. Shirley, 43 Cal. 369; Harden v. Atchison, etc., R. Co., 4 Neb. 521. A denial that the defendants "wrongfully and illegally " diverted 798 Argumentative ANSWERS AV CODE PLEADING. Denials. Time. Where the precise time of an act alleged in a pleading is not material, a denial that the act was done at the time alleged does not raise a material issue. 1 Slander. An answer in slander which merely states that the defendant did not utter the precise words, at the precise time, in the particular place, and in the manner stated in the complaint, is simply stating that the complaint is not all true. Such a form of denial is a negative pregnant. 2 In Manner and Form. Where the answer denies the allegations of the complaint "in manner and form as therein set forth," this is a species of negative pregnant ; such a form of denial refers only to the manner and form in which the plaintiff has stated his cause of action, and not to the substance of the allegations. 3 VI. Argumentative Denials 1. Defined. An argumentative denial arises when the pleader mistakes the matter which may be used as evidence to support a denial, and pleads it as though it were new matter. It is specially pleading matter which goes to dis- prove any material allegation in the complaint. 4 certain water is an admission of the act of diversion. Harris v. Shontz, I Mont. 212; Toombs v. Hornbuckle, I Mont. 286. And a denial that de- fendant unlawfully entered on land is an admission of the entry. Leroux v. Murdock, 51 Cal. 541; Larney v. Mooney, 50 Cal. 610; Busenius v. Cof- fee, 14 Cal. 91. Likewise a denial that the defendant wrongfully and unlawfully took and carried away cer- tain personal property is a confession of the taking and carrying away. Lay v. Neville, 25 Cal. 546; Wood- worth v. Knowlton, 22 Cal. 164. 1. McMurphy v. Walker, 20 Minn. 382; Hincken v. Mutual Benefit L. Ins. Co., 6 Lans. (N. Y.) 21; Davison v. Powell, 16 How. Pr. (N. Y. Supreme Ct.) 467; Livingston v. Hammer, 7 Bosvv. (N. Y.) 670; Shearman v. New York Cent. Mills, i Abb. Pr. (N. Y. Supreme Ct.) 187; Thorn v. New York Cent. Mills, 10 How. Pr. (N. Y. Su- preme Ct.) 19. The denial of having made an as- sault on the day mentioned in the complaint admits that it was commit- ted on some other day. Baker v. Bailey, 16 Barb. (N. Y.) 54. And where the answer denies that the property was destroyed by fire on a certain day, this is an admission that it was destroyed at some other time. Schaetzel v. Germantown, etc., Ins. Co., 22 Wis. 412. The denial of a payment on a certain day is a nega- tive pregnant with an admission of payment on some other day. Argard v. Parker, 81 Wis. 581. Ownership. The time when owner- ship exists is sometimes immaterial. A mere denial that the plaintiff was the owner at the time set out in his complaint is insufficient. Kuhland v. Sedgwick, 17 Cal. 123; Doll v. Good, 38 Cal. 287. Iowa. In Iowa a material issue can be raised by a literal denial of time. Where the complaint alleged that the defendant on a certain day set fire to plaintiff's hay, a denial that defendant did on that day set fire to the hay was held sufficient. Doolittle v. Greene, 32 Iowa 123. See Mahana v. Blunt, 20 Iowa 142. 2. Salinger v. Lusk, 7 How. Pr. (N. Y. Supreme Ct.) 430. In an action for slander an answer is insufficient which denies the truth of two charges taken together, when the charges are made in separate par- agraphs of the petition. Morgan v. Booth, 13 Bush (Ky.)48o. 3. Dole v. Burleigh, i Dakota 218; Crane Bros. Mfg. Co. v. Morse, 49 Wis. 368; Seattle v. Buzley, 2 Wash. Ter.26. 4. Smith v. Little, 67 Ind. 553. At common law an argumentative pleading was bad. Where a plea amounted to the general issue it should have been so pleaded. Stephen PI. (Tyler's ed.) 360. But it was per- missible to explain or qualify the de- nial by a special traverse. Stephen PI. (Tyler's ed.) 189. 799 Argumentative ANSWERS IN COLE PLEADING. Denials. 2. What Constitutes an Argumentative Denial Contracts. Where the action is on a contract, an answer setting up a differ- ent one is an argumentative denial, 1 and pleading facts which show that no contract at all was made is argumentative.' 5 Like- wise matters which tend to show that plaintiff has not performed his contract, or that conditions precedent have not been fulfilled, are matters of evidence under a denial, and reciting them in the answer is unnecessary. 3 Ownership. In ejectment the setting up of title in the defendant amounts to a denial. 4 And ownership of personal property by the defendant may be proved under a general denial ; therefore, where the defendant sets up property in himself, in an action for its recovery or value, this is argumentative. 5 Torts. In an action to recover for negligence, an answer which details the various acts of defendant which show due care is argumentative. 6 And an answer, that the tort was committed, not 1. Fleischman v. Stern, 90 N. Y. no; Marston v. Swett, 66 N. Y. 210, 23 Am. Rep. 43; Wolf v. Schofield, 38 Ind. 175; Clinton County v. Hill, 122 Ind. 215. A contract differing from that set up in the complaint may be specially pleaded. Becker v. Sweetzer, 15 Minn. 427; Taylor v. Richards, 9 Bosw. (N. Y.) 679; Simmons v. Green, 35 Ohio St. 104; Murphy v. Napa County, 20 Cal. 498; Oilman v. Bootz, 63 Cal. 120. But if a defendant denies making the contract alleged, it is irrelevant to the case to set forth a contract he ad- mits he did make. Puget Sound Iron Co. v. Worthington, 2 Wash. Ter. 472. New York. In New York it is held that the setting up a different agree- ment, not accompanied by a denial, is an admission of the allegations of the complaint. Fleischman v. Stern, 90 N. Y. no; Marston v. Swett, 66 N. Y. 210, 23 Am. Rep. 43. 2. Wright v. Schmidt, 47 Iowa 233; Milford School Town v. Powner, 126 Ind. 528; Wallace v. Exchange Bank, 126 Ind. 265; Craig v. Frazier, 127 Ind. 286; Ogden v. Kelsey, 4 Ind. App. 299; Loeb v. Weis, 64 Ind. 286; Lewis v. Edwards, 44 Ind. 333; Day v. Wamsley, 33 Ind. 145; Butler v. Edgerton, 15 Ind. 15; Beard v. Tiegh- man (Supreme Ct.), 20 N. Y. Supp. 736; Dayton Ins. Co. v. Kelly, 24 Ohio St. 358, 15 Am. Rep. 682. A defendant may deny that he signed a note, and also further allege that if his signature appears thereon it is a forgery. Ludlow v. Berry, 62 Wis. 78. 3. Corry v. Campbell, 25 Ohio St. 134; Mehurin v. Stone. 37 Ohio St. 49; Bannister v. Grassy Fork Ditching Assoc., 52 Ind. 178; Wallace v. Ex- change Bank, 126 Ind. 265; Urton v. State, 37 Ind. 339. 4. Bruck v. Tucker, 42 Cal. 346. The recital in the answer of the series of facts through which the de- fendant claims a right to the land is a mere averment of matters of evidence, and amounts to no more than a gen- eral denial. Clink v. Thurston, 47 Cal. 21. An averment that the plaintiff's grantor had made a prior sale to the defendant amounts only to a denial of the plaintiff's title, and the plaintiff need not reply to it. Thompson v. Thompson, 52 Cal. 15.4. If the complaint contains averments of the facts constituting a deraignment of title in a certain manner, and the answer contains a counter-averment that the title was derived in a different manner, this counter-averment is a denial if it alleges that the facts are not otherwise than as averred in the counter-statement. Siter v. Jewett, 33 Cal. 92. 5. Ferguson v. Rainsey, 41 Ind. 511 ; Sparks v. Heritage, 45 Ind. 66 ; Miller v. Brigham, 50 Cal. 615. Likewise setting up title and pos- session in a third person is argument- ative. Woodworth v. Knowlton, 22 Cal. 164. 6. Hoosier Stone Co. v. McCain, 133 Ind. 231; Adams Express Co. v. Dar- nell, 31 Ind. 21 ; Sargent v. St. Louis, etc., R. Co., 114 Mo. 348; Ellet v. St. Louis, etc., R. Co., 76 Mo. 518. 800 Argumentative ANSWERS AV CODE PLEADING. Denials. by the defendant, but by another, is argumentative. 1 In an action for malicious prosecution, facts showing probable cause may be given in evidence under a general denial, and an answer which alleges the existence of probable cause for the prosecution is argumentative. 2 Matters Showing that Facts Do Not Exist. And generally all those matters which show that a fact stated in the complaint does not exist are admissible under a denial, and if spread on the record by means of an answer will either be stricken out as argumenta- tive, or else treated as a denial needing no reply. 3 3. Effect. The authorities are divided as to the effect of an ar- gumentative denial. One line of authorities holds that an affima- tive defense amounting to a denial, though inconsistent with the allegations of the complaint, when not coupled or accompanied by a denial of such allegations, raises no issue ; that the omission to deny is equivalent to a formal admission of the truth of the averments, and is conclusive. 4 A second line of authorities holds that an argumentative denial is a formal defect to be corrected Contributory Negligence. An answer alleging that the injury resulted from the carelessness of the plaintiff is an argumentative denial. Indianapolis, etc., R. Co. v. Rutherford, 29 Ind. 82, 92 Am. Dec. 336. Where the answer alleged that the horse was killed because of the gross negligence of the plaintiff, it was held that the particular act or omission of the plaintiff in which the negligence consisted should have been averred. Jeffersonville, etc., R. Co. v. Dunlap, 29 Ind. 426. 1. Jackson v. Feather River, etc., Water Co., 14 Cal. 19; Hoffman v. Gordon, 15 Ohio St. 211. 2. Trogden v. Deckard, 45 Ind. 572; Rost v. Harris, 12 Abb. Pr. (N. Y. Super. Ct.), 446; Radde v. Ruckgaber, 3 Duer (N. Y.) 684; Simpson v. Mc- Arthur, 16 Abb. Pr. (N. Y. C. PI.) 302, note; Benedict -v. Seymour, 6 How. Pr. (N. Y. Supreme Ct.) 298. 3. Widener v. State, 45 Ind. 244, where the answer set up facts intended to controvert the fact that money was collected in an official capacity; Wilson v. Root, 43 Ind. 486; Lowry -v. Megee, 52 Ind. 107; Watts v. Coxen, 52 Ind. 155; Long v. Hoban, 4 Cin. L. Bull. (Ohio) 986; Thompson v. Lynch, 29 Cal. 189, where the answer averred that no such deed was ever executed; McDonald v. Davidson, 30 Cal. 174. Compare Page v. Merwin, 54 Conn. 426; Colorado Cent. R. Co. v. Mol- landin, 4 Colo. 154; Colorado Cent. R. Co. v. Blake, 3 Colo. 417; Way v. Oglesby, 45 Cal. 655; Goddard v. Ful- ton, 21 Cal. 430. In all the cases except those in New York the argumentative denials seem to have performed the function of a traverse; they were held good denials needing no reply; or else, if objection were taken to them, it had to be in the trial court by motion or de- murrer, and if not so taken the objec- tion was waived. See all the cases ante. 4. Fleischman v. Stern, 90 N. Y. no; Beard v. Tilghman (Supreme Ct.) 20 N. Y. Supp. 736; Tell v. Beyer, 38 N. Y. 161. Compare Newton v. Lee, 139 N. Y. 332. Where an answer, instead of directly denying a material allegation of the complaint, contains a version of the transaction which is in some respects inconsistent with the allega- tion, this will not amount to a denial so as to prevent the allegation from being taken as true. West v. Ameri- can Exch. Bank, 44 Barb. (N. Y.) 175; Wood v. Whiting, 21 Barb. (N. Y.) 190; Paige v. Willet, 38 N. Y. 28; Mil- ler v. Winchofer, N. Y. Daily Reg. March 30, 1881. " I hold it therefore to be incon- trovertible that every special defense which consists of matter which goes to disprove any material allegation in the complaint is defective, and must be stricken out on motion." Per Sel- den, J., iu Benedict v. Seymour, 6 How. Pr. (N. Y. Supreme Ct.) 307. i Encyc. PI. & Pr. 51. 80 1 General Denial ANSWERS IN CODE PLEADING, with Admissions. by motion or demurrer, and that if not so corrected in the trial court the objection is waived. 1 A third line of authorities posi- tively sanctions an argumentative denial, holding that facts set forth in an answer, which only in effect controvert the allegations of a complaint, may be properly pleaded, either by themselves or in connection with a direct denial of the main allegations thereof. 2 VII. GENERAL DENIAL COUPLED WITH ADMISSIONS 1. Generally. The authorities are in a hopeless state of confusion as to whether it is permissible to use a general denial in connection with express admissions. The formula sometimes used, that the defendant " denies each and every allegation of the complaint not herein expressly admitted," has been condemned in a great many cases which hold that the denial, if not general, must be specific. 3 The 1. Judah v. Vincennes University, 23 Ind. 272; Pottlitzer v. Wesson (Ind. App.), 35 N. E. Rep. 1030; Day v. Wamsley, 33 Ind. 146; Bondurant v. Bladen, 19 Ind. 160; Urton v. State, 37 Ind. 339; Port v. Russell, 36 Ind. 60, 10 Am. Rep. 5; Allen v. Randolph, 48 Ind. 496; Ohio, etc., R. Co. v. Hemberger, 43 Ind. 462; Western Union Tel. Co. v. Meek, 49 Ind. 53; Smith v, Denman, 48 Ind. 65. See other cases under other paragraphs of this section. General Denial and Argumentative De- nial Both Pleaded. When both a gen- eral denial and an argumentative one are pleaded, the trial court may strike out the argumentative one, either on demurrer or on motion. Clodfelter v. Lucas, 7 Ind. App. 379; Tewksbury v. Howard (Ind.), 37 N. E. Rep. 355; Adams Express Co. v. Darnell, 31 Ind. 20; Colchen v. Ninde, 120 Ind. 88; Radabaugh v. Silvers (Ind.), 35 N. E. Rep. 694; Walling v. Burgess, 122 Ind. 299; Toledo, etc., R. Co. v. Stephenson, 131 Ind. 203; Fruito v. Elmore (Ind. App.), 34 N. E. Rep. 829; Bash v. Young, 2 Ind. App. 297; Huntington County v. Huffman, 134 Ind. i; Palmerton v. Hoop, 131 Ind. 23; Sluyter v. Union Cent. L. Ins. Co., 3 Ind. App. 312; Standard L., etc., Ins. Co. v. Martin, 133 Ind. 376; Mitchell -v. Noell, 39 Ind. 399; Bolton v. Miller, 6 Ind. 262; Root v. Hibben, 66 Ind. 247; O'Harraz/. Stone, 48 Ind. 417; Craig v. Frazier, 127 Ind. 286; Wickwire v. Angola, 4 Ind. App. 253; Garrison v. Clark, n Ind. 369; Camv. Hunt, 41 Ind. 466; Westcott v. Brown, 13 Ind. 83; Rhode v. Green, 26 Ind. 83; Waggoner v. Listen, 37 Ind. 357; Chicago, etc., R. Co. v. West, 37 Ind. 211 ; City F. Ins. Co. v. Carrugi, 41 Ga. 660; Rosenberg v. Claflin Co. (Ala., 1892), 10 So. Rep. 521; Penter ^.Staight, I Wash. 365. Compare Charles v, Malott, 51 Ind. 350; Kernodle v. Cald- well, 46 Ind. 153. Florida. It cannot be alleged for error that the court struck out, or re- fused to strike out, a plea alleging only facts which might have been given in evidence under the general issue. Davis v. Shuler, 14 Fla. 438. 2. McDonald v. American Mortgage Co., 17 Oregon 626; Hill v. Smith, 27 Cal. 476; Frisch v. Caler, 21 Cal. 71; Bassett v. Enwright, 19 Cal. 636; Far- rior v. Houston, 95 N. Car. 578; Wood- ward v. Sloan, 27 Ohio St. 592; Mc- Nutt v. Kaufman, 26 Ohio St. 127; Singer Mfg. Co. v. Brill, 5 Cin. L. Bull. (Ohio) 523. See other cases under other paragraphs of this section. If the plaintiff places inconsistent allegations in the same count of his complaint, it is sufficient for the de- fendant to deny the allegations which he wishes to controvert, leaving the others unnoticed. Perkins v. Brock, 80 Cal. 320. See also Durre v. Brown (Ind. App., 1893), 34 N. E. Rep. 577; Vanduyn v. Hepner, 45 Ind. 58g;Sto.d- dard v. Johnson, 75 Ind. 20; Nichol- son v. Caress, 76 Ind. 24; Mays v. Hedges, 79 Ind. 288; Webb v. Corbin, 78 Ind. 403; Olauser v, Jones, 100 Ind. 123; Kinney v. Dodge, 101 Ind. 573; Sohn v. Jervis, 101 Ind. 578; Leary v, Moran, 106 Ind. 560. 3. Miller v. McCloskey, i Civ. Pro. Rep. (N. Y. Supreme Ct.) 252; Luce v. Alexander, 4 Civ. Pro. Rep. (N. Y. Super. Ct.) 428; Callanan v. Gilman, 67 802 General Denial ANSWERS IN CODE PLEADING, with Admissions. same authorities hold that, unless amended, such a form of denial is nugatory, and admits the allegations of the complaint. 1 Other authorities take a middle ground with reference to such form of an answer. They hold that if an answer containing a denial of the allegations of the complaint, except as thereinafter stated, is thereby rendered indefinite, uncertain, or complicated, the remedy is by motion to make the answer more definite, and not the exclu- sion of evidence upon the trial. 3 But probably the weight of authority is in favor of allowing a general denial of all allegations not otherwise admitted. When there is no ambiguity in what is stated, admitted, or qualified, and when the allegations of the complaint are so specific that there can be no mistake in ascer- taining what is put in issue and no difficulty in punishing the de- fendant if the verification is false, this form of denial is sufficient. 3 How. Pr. (N. Y. Super. Ct.) 464; Hoff- man v. New York, etc., R. Co., 50 N. Y. Super. Ct. 403; Potter v. Frail, 67 How. Pr. (N. Y. Supreme Ct.) 445; People v. Northern R. Co., 53 Barb. {N. Y.) 101; People v. Snyder, 41 N. Y. 400; Chamberlin v. American Nat., etc., L. Co., 5 N. Y. Wkly. Dig. 128; Hammond v. Earle, 5 Abb. N. Cas. (N. Y. Supreme Ct.) 105; McEncroe v. Decker, 58 How. Pr. (N. Y. Supreme Ct.) 250; Bixby v. Drexel, 9 Rep. (N.Y. C. PI.) 630; Clark v. Dillon, 4 Civ. Pro. Rep. (N.Y. C. PI.) 245; Leary v. Boggs, 3 Civ. Pro. Rep. (N. Y. Supreme Ct.) 227; Scott v. Royal Exch. Shipping Co., 5 N. Y. Month. L. Bull. 84; Manner v. Simpson, 13 Daly(N. Y.) 156; Millville Mfg. Co. v. Salter, 15 Abb. N. Cas. (N. Y.) 305; Thierry v. Crawford, 33 Hun {N. Y. Supreme Ct.) 366; Spiegel v. Thompson, i How. Pr. N. S. (N.Y. City Ct.) 129; Rosenwald v. Hammer- stein, 12 Daly (N. Y. City Ct.) 377; People -v. Northern R. Co., 42 N. Y. 217; Fogerty v. Jordan, 2 Robt. (N.Y.) 319; Bussell v. Bussell, N. Y. Daily Reg., Oct. 3, 1883; Clark v. Dillon, 97 N. Y. 370; Goodwin v. Hirsch, 37 N. Y. Super. Ct. 503. " The Code seems to be so plain in this respect as not to require elucida- tion. A general denial is proper only when the whole complaint, or, if the complaint contains more than one cause of action, when one of the counts or causes of action, can be wholly denied. A specific denial is proper when the complaint, or one of the. causes of action, cannot be wholly denied, in which case such portions of the complaint may be denied as can be, and the remainder stand admitted by the failure to deny." Per Follett, J., in Potter v. Frail, 67 How. Pr. (N. Y. Supreme Ct.) 446. The point of objection raised in Clark v. Dillon, 97 N. Y. 370, was that such an answer throws upon the op- posite party the necessity of first de- termining the legal question as to how far the facts stated may properly be said to qualify or explain others, be- fore the pleader can know what facts are admitted or denied by the answer. A defendant need not deny in his answer any allegations he does not in- tend to controvert; they are admitted by leaving them unnoticed. Newell v. Doty, 33 N. Y. 83. 1. Miller v, McCloskey, 9 Abb. N. Cas. (N. Y. Supreme Ct.) 303; McEn- croe v. Decker, 58 How. Pr. (N. Y. Su- preme Ct.) 250; Clark v. Dillon, 97 N. Y. 370; Goodwin v. Hirsch, 37 N. Y. Super. Ct. 503. See also preceding cases. And the granting or refusing a mo- tion to amend such an answer is wholly discretionary with the trial court. Rosenwald v. Hammerstein, 12 Daly (N.Y.) 377- Qutzre, whether a defendant can specifically admit a part of an entire al- legation, and put other parts of it in issue by a general denial. Fogerty v. Jordan, 2 Robt. (N. Y.) 319. 2. Greenfield v. Massachusetts Mut. L. Ins. Co., 47 N. Y. 437; Gallatin Nat. Bank v. Nashville, etc., R. Co. (Supreme Ct.), 4 N. Y. St. Rep. 714; Spies v. Roberts, 50 N. Y. Super. Ct. 301; Hammond v. Earle, 5 Abb. N. Cas. (N. Y. Supreme Ct.) 105. See Potter v. Frail, 67 How. Pr. (N. Y. Su- preme Ct.) 445. 3. Rawlings v. Alexander (New York City Ct.), 28 N. Y. Supp. 748; Smith v. 803 General Denial ANSWERS IN CODE PLEADING, with Admissions. 2. Answer Must be Definite and Specific as to Admissions. While the weight of authority is in favor of allowing a general denial to be coupled with admissions and explanations, still such a form of answer must be clear and unequivocal in its admissions. The court in construing it will' resolve all doubts against it, and hold that it admits allegations unless it positively indicates a purpose to make the question it purports to put in issue one of the contested issues on the trial. 1 The Proper Form- Where the allegations of the answer are clear and unequivocal as to the admissions, then all the other allega- tions of the complaint are put in issue by a denial of " each and every allegation of the complaint not hereinabove admitted or controverted." 2 Gratz, 59 How. Pr. (N. Y. Marine Ct.) 274; Griffin v. Long Island R. Co., 101 N.Y. 349; Allisz/. Leonard, 46 N.Y. 688; Genesee Mut. Ins. Co. v. Moynihen, 5 Mow. Pr. (N. Y. Supreme Ct.) 321; i laines v. Herrick, 9 Abb. N. Cas. (N.Y. Supreme Ct.) 380; Parshallz/. Tillon, 13 How. Pr. (N. Y. Supreme Ct.) 7; People v. Northern R. Co. ,42 N.Y. 217; Youngs v. Kent, 46 N. Y. 672; Calhoun v. Hallen, 25 Hun (N. Y.) 155; Wheeler v. Billings, 38 N. Y. 263; Fellows v. Muller, 38 N. Y. Super. Ct. 138; Owens v. Hudnut's Pharmacy, 20 Civ. Pro. Rep. (N. Y. Supreme Ct.) 145; Ingle v. Jones, 43 Iowa 286; Kingsley z>. Gilman, 12 Minn. 515; Reuscher v. Hudson, i Clev. Rep. (Ohio) 218. See cases infra, notes I and 2. This form of answer, while not to be commended, is permissible, and serves to put in issue all the allegations in the complaint not embraced in the ex- ception. Crane v. Crane, 43 Hun (N. Y.)3ii. 1. Pennsylvania Coal Co. v. Blake, 85 N. Y. 226; Malcolm v. Lyon (C. PI.), 19 N. Y. Supp. 210; St. Anthony Falls Water Power Co. v. King Bridge Co., 23 Minn. 186, 23 Am. Rep. 682; Leyde v. Martin, 16 Minn. 38. Where both a general denial and special pleas are employed, the denials ought to be so framed as to leave no doubt in the mind of the court and the adverse party as to what is denied and what admitted. Long v . Long, 79 Mo. 644. Where an answer denies each and every allegation of the petition " not hereinafter expressly admitted," and there is some doubt as to what alle- gations are admitted, the trial court may, on motion, require more specific denials. Hintrager v. Richter, 85 Iowa 222. A general denial, in an answer, of all allegations not expressly admitted or qualified, is inapplicable to a subject as to which specific answer is made. Davenport v. Ladd, 38 Minn. 545. See the following cases, where it was held that the admissions contained in the answer were sufficiently definite and certain, and that the other allega- tions of the complaint were in issue. Claffy v. O'Brien (C. PI.), 10 N. Y. Supp. 103; Harland v. Howard (Su- preme Ct.), 10 N. Y. Supp. 449; Walsh v. Mehrback, 5 Hun (N. Y.) 448; Lips- comb v. Lipscomb, 32 S. Car. 243; Becker v. Sweetzer, 15 Minn. 427. Averment of Possession. An averment of possession is admitted by an an- swer which simply argues against such possession; nor does the general statement, that "all allegations, ex- cept as before admitted, are denied," render such an ambiguous denial any the less an admission. Bredell v. Alex- ander, 8 Mo. App. no. 2. Griffin v. Long Island R. Co., 101 N. Y. 354. And see the following cases, where the form was almost identical: Calhoun v. Hallen, 25 Hun (N. Y.) 155, Allis v. Leonard, 46 N. Y. 688; Fellows v. Muller. 38 N. Y. Super. Ct. 137; Tracey v. Baker, 38 Hun (N. Y.) 263 ; Spies v. Roberts, 50 N. Y. Super. Ct. 301; Crane v. Crane, 43 Hun (N.Y.) 309; Mingst v. Bleck, 38 Hun (N. Y.) 358; Gallatin Nat. Bank v. Nashville, etc., R. Co. (Supreme Ct.), 4 N. Y. St. Rep. 714; Ingle v. Jones, 43 Iowa 286. The form, "except as hereinafter stated or admitted," was held by the U. S. Supreme Court to amount in New York to a sufficient general denial 804 Denials of Legal ANSWERS IN CODE PLEADING. Conclusions. VIII. DENIALS OF LEGAL CONCLUSIONS 1. Generally. A denial of a legal conclusion stated in the complaint is a nullity. When the answer denies only the legal conclusions, judgment on the pleadings may be allowed, on motion. 1 2. Denial of Indebtedness. The denial of any indebtedness, without a denial of any of the facts from which that indebted- ness follows as a conclusion of law, raises no issue. Such a denial has no legal effect, and is bad on motion or demurrer, and judgment may be rendered for the plaintiff on the pleadings, unless the answer is amended. 2 of all allegations of the complaint not admitted to authorize evidence to be given to show any of such allegations to be untrue. Burley v. German- American Bank, in U. S. 216, citing People v. Ryder, 12 N. Y. 433; Green- field v. Massachusetts Mut. L. Ins. Co., 47 N. Y. 430; Allis v. Leonard, 46 N. Y. 688; Wheeler v. Billings, 38 N. Y. 263; Hier v. Grant, 47 N. Y, 278; Weavers. Barden, 49 N. Y. 286. See also Kings- ley v. Gilman, 12 Minn. 518; Becker v. Sweetzer, 15 Minn. 427; Leyde v. Martin, 16 Minn. 38. The form of a denial of "each and every allegation j.n the complaint not herein specifically admitted or denied " was approved in Owens v. Hudnut's Pharmacy (Supreme Ct.), 12 N. Y. .Supp. 700. 1. Simpson v. Prather, 5 Oregon 87; McMurray v. Gifford, 5 How. Pr. (N. Y. Supreme Ct.) 14; Pierson v. Cooley, I Code Rep. (N. Y.)gi; Beers v. Squire, i Code Rep. (N. Y.) 84; Mullen v. Kearney, 2 Code Rep. (N. Y.) 18 ; Fleury v. Roget, 5 Sandf. (N. Y.) 646; Excelsior Bank v. Campbell, 4 Thomp. & C. (N. Y.) 549; Sappington v. Jeffries, 15 Mo. 628; Engler v. Bate, 19 Mo. 543; Nelson v. Murray, 23 Cal. 338; Wells v. McPike, 21 Cal. 215 ; Frasier v. "Williams, 15 Minn. 288 ; Downer v. Read, 17 Minn. 493; Wright v. Schmidt, 47 Iowa 233; State v. Bryant, 55 Iowa .451. A denial that plaintiff, a lessor seek- ing to have his title quieted against the lessee, "lawfully entered" or is in "lawful possession," or that de- fendant "has committed any breaches of covenant so as to work a forfeit- ure," is a mere denial of legal conclu- sions, and is bad on demurrer. Bald- win v. Rees, 8 Record (Ohio) 556. A denial that the contract set up in the petition "is or should be in any manner binding on the company" is bad. U. S. Rolling Stock Co. v. At- lantic, etc., R. Co., 34 Ohio St. 467, 32 Am. Rep. 380. Compare Nash v. St. Paul, II Minn. 174; Simmons v. Sisson, 26 N. Y. 265; Dimon v. Dunn, 15 N. Y. 498; Cottle -v. Cole, 20 Iowa 481. In an action to enforce a lien, a de- niil that the plaintiff has a lien is a denial of a conclusion of law. Brad- bury v. Cronise, 46 Cal. 287. An answer in foreclosure which ad- mits the making of the mortgage as security for a debt, admits the cause of action; a denial of the remaining allegations is aimed at a mere legal conclusion, and puts nothing in issue. Kay v. Churchill, 10 Abb. N. Cas. (N. Y. Supreme Ct.) 83. A positive denial of usury will not prevail against admissions of facts which show usury. Manice v. New York Dry Dock Co., 3 Edw. Ch. (N. Y.) 143; Storer v. Coe, 2 Bosw. (N. Y.) 662. A denial of value or the amount of damages is a denial of a legal con- clusion. Starr v. Cragin, 24 Hun 177; Huston -v. Twin, etc, Turnpike R. Co., 45 Cal. 550. See Baydston v. Giltner, 3 Oregon 118. Eight to Open and Close. Where the complaint alleges facts not essential for the plaintiff to aver or prove, and the same are denied by the answer, this does not deprive a defendant who sets up an affirmative defense of the right to open and close the case. Murray v. New York L. Ins. Co., 85 N. Y. 236. 2. California. Curtis v. Richards, 9 Cal. 33; Wells v. McPike, 21 Cal. 215; Lightner v. Mengel, 35 Cal. 452; Kin- ney v. Osborne, 14 Cal. 112. Ohio. Knox v. Lloyd, 18 Ohio St. 353; Larimore v. Wells, 29 Ohio St. 13. New York. Pierson v. Cooley, I Code Rep. (N. Y.) 91; Fosdick v. Groff, 22 How. Pr. (N. Y. Supreme Ct.) 158 ; 805 Denials of Legal ANSWERS IN CODE PLEADING. Conclusions. When Defendant May Deny Indebtedness. But when in his complaint plaintiff avers indebtedness as a substantive fact, instead of alleg- ing the facts out of which the indebtedness grew, defendant may treat the averment as an alleged fact, and so deny it in his answer. 1 3. Fraud. Fraud is a legal conclusion from the facts alleged in the complaint. A denial of fraud is the denial of a legal conclu- sion, and is bad.* Edson v. Dillaye, 8 How. Pr. (N. Y. Supreme Ct.) 273; Emery v. Baltz, 94 N. Y. 408; Drake v. Cockroft, 4 E. D. Smith (N. Y.) 34- Kentucky. Haggard v. Hay, 13 B. Mon. (Ky.) 175; Clarke v. Finnell, 16 B. Mon. (Ky. ) 329; Francis v. Francis, 18 B. Mon. (Ky.) 57. Colorado. Gale v. James, II Colo. 540; Watson v. Lemen, 9 Colo. 200. Iowa. Stucksleger v. Smith, 27 Iowa 286; Callanan v. Williams, 71 Iowa 363; Mann v. Howe, 9 Iowa 546; Morton v. Coffin, 29 Iowa 235; Bridge v. Living- ston, ii Iowa 57; Mclntosh v. Lee, 57 Iowa 356; Sheldon v. Middleton, 10 Iowa 17. Arkansas. Lawrence v. Meyer, 35 Ark. 104 ; Gwynn v. McCauley, 32 Ark. 97 ; Fain v. Goodwin, 35 Ark. 109; Moore v. Nichols, 39 Ark. 145. Idaho. Swanholm v. Reeser, 2 Idaho 1167. Montana. Higgins v. Germaine, I Mont. 230. Nevada. Skinker v. Clute, 9 Nev. 342- United States. Buller v. Sidell, 43 Fed. Rep. 116. See Mills z>. Duryee, 7 Cranch (U. S.) 481. Nil Debet. An answer which is merely a formal plea of nil debet, or nothing more than that the defendant does not owe the debt, is but a con- clusion of law, and is a nullity. Law- rence v. Meyer, 35 Ark. 104; Gwynn v. McCauley, 32 Ark. 97; Fain v. Good- win, 35 Ark. 109; Moore v. Nichols, 39 Ark. 145. A plea of nil debet is an insufficient answer to an action on a judgment. Indianapolis, etc., R. Co. v. Risley, 50 Ind. 60. Refusal to Deliver Goods. In an ac- tion for breach of contract an aver- ment that defendant "refused" to deliver certain goods, as required by the contract, is material, and is not denied by allegations of the answer that nothing is due plaintiff as dam- ages, and that defendant is and always has been " ready and willing" to de- liver the goods. Hand v. Belcher Mosaic Glass Co. (City Ct.), 9 N.'Y. Supp. 738. Ohio. A denial of indebtedness simply, while bad, does not warrant a, judgment for plaintiff on the plead- ings. Lewis v. Smith, 2 Disney (Ohio), 434- 1. McLaughlin v. Wheeler, i S. Dak. 497; Anonymous, 2 Code Rep. (N. Y.) 67; Westlake v. Moore, 19 Mo. 556; Godfrey v. Cruise, I Iowa 92; Higgins v. Wortell, 18 Cal. 331, where the complaint alleged indebtedness, and the answer was held bad as being a negative pregnant, but the court intimated that a different form of de- nial of indebtedness would have been good; Heath -v. White, 3 Utah 474. But see Dickert v. Weise, 2 Utah 350, "When the plaintiff will persist in averring that the defendant is indebted to the plaintiff, instead of setting forth the contract upon which the indebted- ness arises, he should not complain if the defendant takes issue upon such indebtedness." Per Ingraham, J., in Morrow v. Cougan, 3 Abb. Pr. (N. Y. C. PI.) 329. See also Quin v. Lloyd, 41 N. Y. 349. Sales. In an action for the price of goods sold and delivered, an answer denying the indebtedness is the proper answer when the goods were paid for on delivery, for no indebtedness grew out of the transaction. Flowers v. Slater, 2 W. L. M. (Ohio) 445. Ohio. In pleading an account by copy, as allowed under 122 of the Ohio Code of Civil Procedure, the allegation, in the petition, of the amount due on the account is a mate- rial allegation, and must be denied in the answer. Dallas v. Ferneau, 25 Ohio St. 635. Compare Prindle -v. Caruthers, 15 N. Y. 425, where it was held that if a copy of the instrument is attached to the pleading and the gen- eral allegation of indebtedness is made, the defendant, by a general denial of indebtedness, puts in issue every fact alleged. 2. Scott v. Umbarger, 41 Cal. 411. 806 Denials of Legal ANSWERS IN CODE PLEADING. Conclusions. 4. Denial that a* Act Was "Duly" Done. The word "duly," when used in a complaint, is generally a conclusion of law. Deny- ing that an act was "duly" done raises no issue. 1 5. Denial of Capacity. A mere denial that the plaintiff has the capacity to sue, or that he is the owner of the property sought, or that the chose in action belongs to him, is the denial of a legal conclusion. 2 6. Answer Containing a Legal Conclusion. Sometimes, instead of denying a legal conclusion of the complaint, the pleader states in an affirmative form a legal conclusion in the answer, intending thereby to deny the legal effect of some matter stated in the complaint. Such a form of denial is equally faulty with that which denies a legal conclusion, and it raises no issue of fact. 3 A positive denial of fraud in the answer will not prevail against admis- sions therein of facts which show that the transaction was fraudulent. Rob- inson v. Stewart, 10 N. Y. 189; Litch- field v. Pelton, 6 Barb. (N. Y.) 187. Aider. Though the statement of facts in the complaint does not consti- tute a sufficient allegation of fraud, yet, if the defendant in his answer de- nies only the legal conclusion of fraud, the doctrine of aider applies to make the complaint sufficient. Bonds v. Smith, 106 N. Car. 553. 1. State z/. McGarry, 21 Wis. 496. To deny that a corporation is " duly " organized does not raise an issue of fact. Oregon Cent. R. Co. v. Scoggin, 3 Oregon 162. Proceedings which are void by rea- son of the infirmity of the statute under which they were taken are not cured by an averment in a complaint that they were duly and legally had; and a failure to deny the averment in the answer is not an admission that the proceedings were valid or legal. People v. Hastings, 29 Cal. 450. See Horner v. Rowley, 51 Iowa 626. But where a complaint alleged gen- erally that a demand for rent was duly made on the premises, an answer deny- ing that the rent was duly demanded was held sufficient. McGlynnz/. Moore, 25 Cal. 384. Judgments. Denying that a judg- ment was "duly" rendered is bad; if the defendant wants to controvert the fact that he is bound thereby, and to set up the defense that there was no jurisdiction in the court to render the judgment sued on, he must set out the facts. Ritchie v. Carpenter, 2 Wash. 513; People v. San Francisco, 27 Cal. 655- Waiver of Objection. Though an an- swer which denies that an act was " legally and duly" done is subject to motion on account of indefiniteness, yet if the parties proceed to trial the objection is waived. Trustees v. Od- lin, 8 Ohio St. 293. 2. In an action by husband and wife, on a note, an answer that the note is not her separate property is the state- ment of a mere conclusion of law. Frost v. Harford, 40 Cal. 165. A defense that the plaintiff is not the lawful owner of the note, when upon its face it runs to him, is frivo- lous. Felch v. Beaudry, 40 Cal. 440; Seeley v. Engell, 17 Barb. (N. Y.) 530. Compare Hunter v. Martin, 57 Cal. 365; Walrod v. Bennett, 6 Barb. (N. Y.) 144. 3. Conkling v. Manhattan R. Co. (Supreme Ct.), 12 N. Y. Supp. 846; Manufacturers' Nat. Bank v. Russell, 6 Hun (N. Y.) 375; Christy v. Dana, 42 Cal. 175; Yates v. Burch, 87 N. Y. 409; Cropsey v. Perry, 23 N. Y. Wkly. Dig. 162; Louis v. Brown, 7 Oregon 326; Kentucky River Nav. Co. v. Com., 13 Bush (Ky.) 435. An answer alleging that the note sued on " is non est factum as to de- ' fendant, it not being a legal promis- sory note against defendant in this action," and that, owing to sickness, the defendant "was in no condition to execute a legal promissory note," avers only legal conclusions, and is insufficient as a plea of non est factum. Templeton v. Sharp (Ky., 1888), 9 S. W. Rep. 507. Where a petition alleges that a rail- road company, by virtue of a certain contract regarding a portion of its right of way, abandoned the same, and that its easement thereupon ter- 807 Denials of ANSWERS IN CODE PLEADING. Knowledge. 7. Denial of the Facts Impliedly Denies the Conclusion of Law. While the denial of a legal conclusion does not deny the facts from which that conclusion is deduced, the converse is not true. The denial of the facts is an implied denial of the legal conclu- sion, and such implied denial is sufficient without any express denial. 1 IX. DENIALS OF KNOWLEDGE 1. How Such Denials Construed. All the Codes provide for a general or specific denial of each material allegation of the complaint controverted by the defend- ant, or of any knowledge or information thereof sufficient to form a belief* If the answer denies knowledge or information of material facts set out in the complaint, it will be construed like any other denial; if it denies knowledge of all the material facts, it consti- tutes a general denial ; if of only a part of the material facts, it will be construed as a specific denial. And the rules which apply to ordinary denials are, so far as they are applicable, applied to this form of denial. 3 minated, the denial in the answer that the company abandoned or in- tended to abandon its right of way, or that its easement ceased, raises no issue of fact, but merely states a con- clusion of law. Pennsylvania Co. v. Platt, 47 Ohio St. 366. 1. Prost v. More, 40 Cal. 347. And see supra, section IV. ALLEGATIONS ADMITTED BY A FAILURE TO DENY. 2. See N. Y. Code Civ. Pro. 500. ' New York. But a denial of suffi- cient knowledge to form a belief as to allegations contained in a complaint is not authorized in the District Court of New York City. Steinam v. Bell (C. PI.), 27 N. Y. Supp. 905. 3. Schulenberg v. Prairie Institute, 65 Mo. 295; Griffin v. Long Island R. Co., 101 N. Y. 348, where the answer, although admitting some of the facts, was held a general denial; Wadleigh v. Marathon County Bank, 58 Wis. 546; Carr v. Bosworth, 68 Iowa 669; Seattle Bank v. Meerwaldt, 8 Wash. 630; Stevenson v. Flournoy, 89 Ky. 570, where a denial of knowledge or information was taken on an imma- terial matter. Where a defendant denies knowledge as to the cause of action, he may also allege that, if it ever existed, it has been satisfied. Dovan v. Dinsmore, 33 Barb. (N. Y.) 86. Negative Pregnant. A denial in an answer of knowledge or information sufficient to form a belief "as to each and every allegation" in tl.e com- plaint not specifically denied is bad, as containing a negative pregnant. Waters v. Curtis, 13 Daly (N. Y.) 179. See Seattle Nat. Bank v. Meerwaldt, 8 Wash. 630. Denial of Plaintiffs Capacity. Where it is provided that an "affirmative allegation," that plaintiff is not a cor- poration or has not capacity to sue, must be made to put such fact in issue, the denial of any knowledge or infor- mation sufficient to form a belief that plaintiff is a corporation, or has capa- city to sue, creates no issue. A denial of knowledge or information does not amount to a specific allegation that the corporation does not exist, any more than does an ordinary denial. Concordia Sav., etc., Assoc. v. Read, 93 N. Y. 474; Cooper v. Wandel (Su- preme Ct.), 9 N. Y. St. Rep. 9; City Bank v. Drake, 5 N. Y. Wkly. Dig. 477; First Nat. Bank v. Clarke, 22 N. Y. Wkly. Dig. 569; Bengtson v. Thingvalla Steamship Co., 3 Civ. Pro. Rep. (N. Y. Supreme Ct.) 204; Land, etc., Co. v. Williams, 35 S. Car. 367. Such an answer was held frivolous in John Dixon Crucible Co. v. New York City Steel Works, 9 Abb. Pr. N. S. (N. Y. Supreme Ct.) 195. Contra. The defendant may deny knowledge and information as to whether the plaintiff is a corporation or not, as alleged in its complaint. Jack- son Sharp Co." v. Holland, 14 Fla. 384. Georgia. It would seem that in Georgia this form of a denial shifts the 808 Denials of ANSWERS IN CODE PLEADING. Knowledge. 2. Form. The courts construe this form of denial rather tech- nically. The words of the statute must be followed, at least in substance, and the denial must embrace both " knowledge " and "information." 1 The best way to draft the answer is to follow the exact words of the statute ; but a slight deviation therefrom will not vitiate. 2 burden of proof. It is there held that a plea of non est factum, or of nonpart- nership, sworn to by the defendant "to the best of his knowledge and belief," does not cast the onus upon the plaintiff, but only entitles the de- fendant to go to the jury and estab- lish his defense. Martin v. Lamb, 77 Ga. 252. 1. James v. McPhee, 9 Colo. 486; Haney v. People, 12 Colo. 345; Hast- ings v. Gwynn, 12 Wis. 672; Cutler v. McCormick, 48 Iowa 406; Manny v. French, 23 Iowa 25o;'Claflin v. Reese, 54 Iowa 544; Durden v. Simmons, 84 N. Car. 555; Farmer's, etc., Bank v. Charlotte, 75 N. Car. 45 ; Hantemann v. Gray, 5 Civ. Pro. Rep. (N. Y. CityCt.) 224, note; Lloyd v. Burns, 38 N. Y. Super. Ct. 423; First Nat. Bank v. Clarke, 22 N. Y. Wkly. Dig. 569; Ed- wards v. Lent, 8 How. Pr. (N. Y. Supreme Ct.) 28; Heye v. Bolles, 33 How. Pr. (N. Y. C. PI.) 266; People v. McCumber, 15 How. Pr. (N. Y. Supreme Ct.) 186; Ketcham v. Zerega, I E. D. Smith (N. Y.) 553. And for a lack in this respect the answer raises no issue, and the allegations of the complaint are admitted. Fagg v. Southern Bldg. Assoc., 113 N. Car. 364. See cases sttpra. ' A denial of knowledge sufficient to form a belief is not equivalent to a denial " of any knowledge or informa- tion thereof sufficient to form a be- lief," and does not form an issue. First Nat. Bank v. Clarke, 22 N. Y. Wkly. Dig. 569; Edwards v. Lent, 8 How. Pr. (N. Y. Supreme Ct.) 28; Heye v. Bolles, 33 How. Pr. (N. Y. C. Pl.j 266; People v. McCumber, 15 How. Pr. (N. Y. Supreme Ct.) 186; Ketcham v. Zerega, I E. D. Smith (N. Y.)553; Hantemannw. Gray, 5 Civ. Pro. Rep. (N. Y. City Ct.) 224, note; Lloyd v. Burns, 38 N. Y. Super. Ct. 423- But the following cases would seem to hold that a denial of knowledge alone is sufficient: Genesee Mut. Ins. Co. v. Moynihen, 5 How. Pr. (N. Y. Supreme Ct.) 321; Snyder v. White, 6 How. Pr. (N. Y. Supreme Ct.) 321; Flood v. Reynolds, 13 How. Pr. (N. Y. Supreme Ct.) 112; Livingston v. Hammer, 7 Bosw. (N. Y.) 670; Richter v. McMurray, 15 Abb. Pr. (N. Y. C. PI.) 346; Temple v. Mur- ray, 6 How. Pr. (N. Y. Supreme Ct.) 329- 2. Cumins v. Lawrence County, i S. Dak. 158; Robbinsz'. Baker, 2 Oregon 52; Sherman v. Osborn, 8 Oregon 67; Colburn v. Barrett, 21 Oregon 27; Wilson -v. Allen, n Oregon 154; Ninde v. Oskaloosa, 55 Iowa 207; Livingston v. Hammer, 7 Bosw. (N. Y.) 670; Richter v. McMurray, 15 Abb. Pr. (N. Y. C. PI.) 346; Snyder v. White, 6 How. Pr. (N. Y. Supreme Ct.) 321; Johnson v. Haberstro (Supreme Ct.), 7 N. Y. St. Rep. 225; McGuinness v. New York, 13 N. Y. Wkly. Dig. 522. Forms Held Good. An answer aver- ring that the defendant has "no knowledge or information sufficient to form a belief as to the truth of any of the allegations in said complaint con- tained" is good. Grocers' Bank v. O'Rorke, 6 Hun (N. Y.) 18. Where defendants in their answer " say that they have no knowledge or information sufficient to form a belief," etc., and "aver the truth to be that they are entirely ignorant and unin- formed, and have not any knowledge or information sufficient to form a be- lief," etc., this is sufficient in form. Meehan v. Harlem Sav. Bank, 5 Hun (N. Y.) 439. And see Flood v. Reyn- olds, 13 How. Pr. (N. Y. Supreme Ct.) 112, for an approved form. Forms Held Bad. In the following cases the form of answer was held bad as not meeting the requirements of the statute : Sayre v. Gushing, 7 Abb. Pr. (N. Y. C. PL) 371; Elton v. Markham, 20 Barb. (N. Y.) 343; Nichols v. Jones, 6 How. Pr. (N. Y. Supreme Ct.) 355; Bidwell v. Overton, 26Abb. N. Cas. (N. Y. C. PI.) 402; Collins v. North Side Pub. Co. (City Ct.), 20 N. Y. Supp. 892; Baylis v. Stimson, no N. Y. 621; Sheldon v. Sabin, 12 Daly (N. Y.) 84; Waters v. Curtis, 13 Daly (N. Y.) 179; Wood v. Staniels, 3 Code Rep. (N. Y.) 152; Lay Gas Mach. Co. v. Falls of 809 Denials of ANSWERS IN CODE PLEADING. Knowledge. 3. Denials " upon Information and Belief." The courts have, by a. construction of the provision allowing a denial of knowledge or information, reached the conclusion that a denial "upon informa- tion and belief" is also allowed by such provision. A defendant may deny, upon information and belief, allegations of the com- plaint when he has no personal knowledge as to the facts alleged, but has information sufficient to induce him to believe that the allegations are not true. 1 Neuse Mfg. Co., 91 N. Car. 74; Ord v. Steamer Uncle Sam, 13 Cal. 370; Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621; Watson v. Hawkins, 60 Mo. 550. Denial of the Allegation not Neces- sary. A defendant, after having al- leged that he has no knowledge or in- formation sufficient to form a belief as to the truth of the allegations of the complaint, is not required to add a statement that he therefore denies the same, as the denial in the words of the Code forms a complete issue, and such an issue is not aided by such ad- ditional averment. Cumins v. Law- rence County, i S. Dak. 158; Flood v. Reynolds, 13 How. Pr. (N. Y. Supreme Ct.) 112. Denial of Knowledge Coupled with Ad- missions. An answer, by which "de- fendant denies any knowledge or in- formation sufficient to form a belief as to every allegation in the complaint not hereinbefore admitted," will be held to put in issue the facts alleged in the complaint and not specifically admitted by the answer, where the denials are so specific as to clearly point out the allegations of the com- plaint to which they are intended to apply. Tracy v. Baker, 38 Hun (N. Y.) 263. And see McGuinness v. New York, 13 N. Y. Wkly. Dig. 522. for a suffi- cient form of a denial of knowledge of some of the allegations of the com- plaint, and an admission of others. 1. Sheldon v. Heaton, 78 Hun (N. Y.) 50; Wood v. Raydure, 39 Hun (N. Y.) 144; Humble v. McDonough (Buffalo Super. Ct.), 25 N. Y. Supp. 965; Sackett v. Havens, 7 Abb. Pr. (N. Y. Supreme Ct.) 371, note; Hen- derson v. Manning, 5 Civ. Pro. Rep. (N. Y. City Ct.) 221 ; Macauley v. Brom- ell Printing Co., 5 Civ. Pro. Rep. (N. Y. City Ct.) 431; Bennett v. Leeds Mfg. Co., 1 10 N. Y. 151; Brotherton v. Downey, 21 Hun (N. Y.) 436 ; Mus- grove v. New York, 51 N. Y. Super. Ct. 528; Maclay v. Sands, 94 U. S. 586; Jones v. Petaluma, 36 Cal. 230. " It is quite clear, from these pro- visions, that a party has no right to interpose an unqualified denial in a verified answer unless it be founded upon personal knowledge; and that, where he has no positive knowledge, but has knowledge or information suf- ficient to form a belief, he is not only permitted, but bound, at his peril, to- deny upon information and belief." Per Barrett, J., in Brotherton -v. Downey, 21 Hun (N. Y.) 436. " Except in those special cases in which the defendant is conclusively presumed to have positive knowledge as to the existence or non-existence of a fact alleged in the complaint, we have no doubt that -the defendant may interpose a denial in this form. He may have information which satisfies him how the fact is, and yet he may not have any actual, positive knowl- edge thereof. In such case he can deny in no other form. He cannot deny positively, because he does not know positively that such a denial would be true. He cannot deny knowl- edge or information sufficient to form a belief, because he has formed a be- lief on sufficient information. The only mode in which he can answer truly is to deny upon information and belief." Per Lyon, J., in Stacy v. Bennett, 59 Wis. 235. A denial upon " information and belief " is peculiarly proper when de- fendant is ignorant of the facts al- leged, and must verify his answer. He cannot safely deny, nor is he bound to admit. Snyder v. White, 6 How. Pr. (N. Y. Supreme Ct.) 321; Lidgerwood Mfg. Co. v. Baird, 6 Civ. Pro. Rep. (N. Y. Super. Ct.) 54; Tay- lor v. Smith (Supreme Ct.), 8 N. Y. Supp. 519; Holmes v. Continental Co., N. Y. Daily Reg., Nov. n, 1884; Kit- chen v. Wilson, 80 N. Car. 192; Ley- ner v. Fuller, 67 Iowa 188. The answer to a petition to the Su- 810 Denials of ANSWERS IN CODE PLEADING. Knowledge. 4. When a Denial of Knowledge or Information Cannot be Inter- posed. Although the denial of knowledge or information is an authorized form of denial, it is by no means absolute or universal. The true distinction to be observed in determining when a de- fendant may avail himself of the privilege accorded to him of answering in the qualified form allowed by the Code, and when he must positively admit or deny the allegations, is to inquire whether the facts alleged are presumptively within the defend- ant's knowledge. If they are, he cannot avail himself of this form of denial. 1 preme Court for a writ of mandate may deny the allegations of the peti- tion upon information and belief. People v. Alameda County, 45 Cal. 395. See Walker v. Buffandeau, 63 Cal. 312. A denial upon information and be- lief may be interposed when it appears that the facts in controversy are not within the personal knowledge of the defendant, and that the information on which he bases his belief comes from agents employed to transact the business out of which the litigation arose. Maclay v . Sands, 94 U. S. 586. The Proper Form. The answer must expressly state that the defendant denies according to both his informa- tion and his belief. This must be expressed in the answer, not in the verification. Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621 ; Stent v. Continental Nat. Bank, 5 Abb. N. Cas. (N. Y. Supreme Ct.) 88. And see Metraz v. Pearsall, 5 Abb. N. Cas. (N. Y. Supreme Ct.) 90, and Davis v. Pot- ter, 4 How. Pr. (N. Y. Supreme Ct.) 155, where the forms of answer were approved. Contra. A denial in an answer "upon information and belief" is not authorized by the Code, and is insuffi- cient. Swinburne v. Stockwell, 58 How. Pr.(N. Y. SupremeCt.)3i2; PrattMfg. Co. v. Jordan Iron, etc., Co., 33 Hun(N. Y.) 143; Edwards v. Lent, 8 How. Pr. (N. Y. Supreme Ct.) 28; Bidwell v. Overton, 26 Abb. Pr. N. Cas. (N. Y. C. PI.) 402; Powers v. Rome, etc., R. Co., 3 Hun (N. Y.) 285; Therasson v. McSpedon, 2 Hilt. (N. Y.) i; Pfandler Process Fermentation Co. v. McPher- son (Supreme Ct.), 20 N. Y. St. Rep. 473; Schroeder v. Wanzor, 2 How. Pr. N. S. (N. Y. Supreme Ct.) 13; Nelson v. Murray, 23 Cal. 338. The above authorities hold this view because, though a party does have some in- formation touching the allegations of the complaint, still, if there is a want of belief on his part, he is justified in denying the allegations on the ground that he has no information or knowl- edge sufficient to form a belief. See Sackett v. Havens, 7 Abb. Pr. (N. Y.) 371, note; State v. Hancock County, ii Ohio St. 183; McKenzie v. Wash- ington L. Ins. Co., 2 Disney (Ohio) 223. Compare the following cases : First Nat. Bank v. Clark, 22 N. Y. Wkly. Dig. 569; Sheldon v. Sabin (C. PL), 4 Civ. Pro. Rep. (N. Y.)4; Hante- mann v. Gray (City Ct.), 5 Civ. Pro. Rep. (N. Y.) 224, note; Henderson v. Manning, 5 Civ. Pro. Rep. (N. Y. City Ct.) 221; Judd v. Gushing, 22 Abb. N. Cas. (N. Y. Supreme Ct.) 358; Zim- mermann v. Hunt (Supreme Ct.), 7 N. Y. St. Rep. 778 ; Hoffman v. New York, etc., R. Co., 50 N. Y. Super. Ct. 403; Simmonds Mfg. Co. v. Brown- ing, N. Y. Daily Reg., Jan. 24, 1884; Moss v. Barton, 12 N. Y. Wkly. Dig. 524; Myers v. Bank of Portsmouth (Supreme Ct.), 2 N. Y. St. Rep. 125; Richards v. Frechsel, 14 Abb. N. Cas. (N. Y. City Ct.) 316, note; Oppermann v. Barr, N. Y. Daily Reg., April 28^ 1884; Roby v. Hallock, 5 Abb. N. Cas. (N. Y. Supreme Ct.) 86; City Bank v. Drake, 5 N. Y. Wkly. Dig. 477; Kam- lah v. Salter, 6 Abb. Pr. (N. Y. C. PI.) 226; Neuberger v. Webb, 24 Hun (N. Y.) 347; Ladue v. Andrews, 5 N. Y. Wkly. Dig. 262; Boughen v. Nolan, 5 N. Y. Wkly. Dig. 100. 1. Thorn v. New York Cent. Mills, 10 How. Pr. (N. Y. Supreme Ct.) 19; Hackett v. Richards, 11 N.Y. Leg. Obs. 315; Edwards v. Lent, 8 How. Pr. (N. Y. Supreme Ct.) 28; Ketcham v. Zere- ga, I E. D. Smith (N. Y.) 553: Kellogg v. Baker, 15 Abb. Pr. (N. Y. Super. Ct.)286; Joseph Dixon Crucible Co. v. New York City Steel Works, 9 Abb. Pr. N. S. (N. Y. Supreme Ct.) 195; Fallen v* 811 Denials of ANSWERS IN CODE PLEADING. Knowledge. Practice where Defendant Does Not Recollect. But there may be cases in which, although apparently within his knowledge, the defend- ant does not know or remember the facts alleged. If so, he must in his answer, or in the affidavit verifying it, state the lapse of time or other circumstances which he supposes warrant the qual- ified denial permitted by the Code. 1 Durant, 60 How. Pr. (N. Y. Supreme Ct.) 178; Morton v. Jackson, 2 Minn. 219; Minor v. Willoughby, 3 Minn. 225; Freeman v. Curran, I Minn. 169; El- more v. Hill, 46 Wis. 618. Nor can the defendant deny information when he has the means of information. Hance v. Remming, i Code Rep. N. S. (N. Y.) 204; Ketcham v. Zerega, i E. D. Smith (N. Y.) 553; Wesson v. Judd, i Ab. Pr. (N.Y. C. PI.) 254; Nich- ols v. Lumpkin, 20 N. Y. Wkly. Dig. 367; Gribble v. Columbus Brewing Co., zoo Cal. 67. And this principle and rule of answering applies as well to a corporation as to an individual defendant. Thorn v. New York Cent. Mills, 10 How. Pr. (N. Y. Supreme Ct.) 19. "But the statute imposes upon the defendant, if a natural per- son, and if a corporation, upon its of ficers and agents, the duty of acquir- ing the requisite knowledge or in- formation respecting the matters al- leged in the complaint to enable them to answer in the proper form. * * * Any other form of denial in such cases is an evasion of the statute." Per Field, J., in San Francisco Gas Co. v. San Francisco, 9 Cal. 453. See Curtis v. Richards, 9 Cal. 38; Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621. Rule in Equity. The rule of requir- ing the defendant to answer positively as to facts which are presumptively within his knowledge is borrowed from equity practice. Thorn v. New York Cent. Mills, 10 How. Pr. (N. Y. Supreme Ct.) 19. See Hall v. Wood, i Paige (N. Y.) 404; Sloan v. Little, 3 Paige (N. Y.) 103. Effect of Denying Knowledge of a Fact Presumptively Within Defendant's Knowl- edge. As to just what effect shall be given to an answer which denies knowledge of a fact which the law presumes a party to know is a matter of doubt. It has been held that such an answer is evasive and admits the allegations of the complaint. Brown v. Scott, 25 Cal. 190. Other authori- ties hold that the answer is good until struck out on motion as sham. Smal- ley v. Isaacson, 40 Minn. 450; Livings- ton v. Hammer, 7 Bosw. (N. Y.) 670; Leach v. Boynton. 3 Abb. Pr. (N. Y. Supreme Ct.) I. And it has been held that, while the answer of an individual defendant may be shown by affidavits to be false, and while it may be shown that the matters are within his personal knowledge, and his answer may there- fore be struck out as sham, this rule does not obtain when the defendant is a corporation. Martin v. Erie Pre- serving Co., 48 Hun (N. Y.) 81. Other authorities hold that the answer is good, and that no motion can be made to strike it out as sham, false, or frivolous. They intimate that the remedy is a criminal prosecution for the false verification. Caswell v. Bushnell, 14 Barb. (N.Y.)393; Grocers' Bank v. O'Rorke, 6 Hun (N. Y.) 19; Hagadorn v. Edgewater, 59 Hun (N. Y.) 625; Farmers', etc., Bank v. Char- lotte, 75 N. Car. 45; Erwin v. Lowery, 64 N. Car. 321; Swepson v. Harvey, 66 N. Car. 436. Denials of Information Not Favored. Denials of information are not favored in a pleading which a party must have leave of court to put in. O'Brien v. Catlin, i Code Rep. N. S. (N. Y.) 273. Where a receiver is made a party defendant after the original defendant has answered, such receiver cannot deny information or knowledge of a fact admitted in the answer of the de- fendant. Forbes v. Waller, 25 N.Y. 430. 1. Richardson -v. Wilton, 4 Sandf. (N.Y.) 708; Thorns. New York Cent. Mills Co., 10 How. Pr. (N. Y. Supreme Ct.) 22; Edwards v. Lent, 8 How. Pr. (N. Y. Supreme Ct.) 28; Shearman v. New York Cent. Mills, I Abb. Pr. (N. Y. Supreme Ct.) 187; Wesson v. Judd, i Abb. Pr. (N. Y. C. PI.) 254; Mott v. Burnett, i Code Rep. N. S. (N. Y.) 225 ; Hance v. Remming, I Code Rep. N. S. (N. Y.) 204; Brown v. Scott, 25 Cal. 190 ; Vassault v. Aus- tin, 32 Cal. 597; Comerford v. Dupuy, 17 Cal. 308. See Jones v. Perot (Colo.), 34 Pac. Rep. 728. 812 Denials of ANSWERS IN CODE PLEADING. Knowledge.. 5. What Matters are Presumptively Within Defendant's Knowledge Personal Acts. A defendant cannot deny knowledge of his own acts ; nor can he deny knowledge of allegations which include personal transactions with him. In such cases a positive answer is required. 1 Acts of Agent. Neither a corporation nor an individual can deny knowledge of the acts of its or his agent. 8 Sales. Where merchandise is alleged to have been sold to defendant, he must positively deny its purchase. He cannot deny on information and belief. 3 Contents of Records. A party cannot plead ignorance of a public record to which he has access, and which affords him all the means of information necessary to obtain positive knowledge of the fact. 4 1. Lewis -v. Acker, n How. Pr. (N. Y Supreme Ct.) 163; Sherman v. Boehm, 13 Daly (N. Y.) 42. A de- fendant cannot deny knowledge of an allegation that he boarded and lodged with plaintiff, Byrne v. Benton, 3 N. Y. Month. L. Bull. 100; nor that he has not paid his taxes, Knox v. Galligan, 21 Wis. 470; nor whether he spat in the plaintiff's face, Richardson v. Wilton, 4 Sandf. (N. Y.) 708; nor whether he caused the plaintiff to be arrested on a writ, Lawrence v. Derby, 15 Abb. Pr. (N. Y. Super. Ct. ) 346, note ; nor knowledge of the quantity of goods which he admits he received, Starbuck v. Dunklee, 10 Minn. 168, 88 Am. Dec. 68. Nor can an officer of a corporation deny knowledge of the corporate ex- istence. Brown v. La Crosse City Ga^s Light, etc., Co., 21 Wis. 51. All the answers in the above cases were either stricken out as sham, or were held to admit the allegations. 2. Shearman v. New York Cent. Mills, i Abb. Pr. (N. Y. Supreme Ct.) 187; Loveland v. Garner, 74 Cal. 298; Beyre v. Adams, 73 Iowa 382; Nash- ville, C. & St. L. R. Co. v. Carrico (Ky.), 26 S. W. Rep. 177. Partners. A partner cannot be per- mitted to deny any knowledge or in- formation as to a transaction alleged to have been had with his firm. Chap- man v. Palmer, 12 How. Pr. (N. Y. Su- preme Ct.)37; Mott v. Burnett, I Code Rep. N. S. (N. Y.) 225. Contra. A foreign corporation may deny knowledge or information as to allegations of demand made of its agents in New York City. Warner v. U. S. Land, etc., Co., 53 Hun (N. Y.) 312. And a city may deny knowledge of the acts of its assessors. Smith v. Janesville, 26 Wis. 291. And a corpo- ration may deny knowledge with re- spect to the alleged negligence of its servants in transporting goods. Boor- man v. American Express Co., 21 Wis. 154- 3. Wingz/. Dugan, 8 Bush (Ky.)s83; Lay Gas Mach. Co. v. Falls of Neuse Mfg. Co., 91 N. Car. 74; Chapman v. Palmer, 12 How. Pr. (N. Y. Supreme Ct.) 37. In the first two cases above, the answer was treated as a nullity, and was held to admit the allegations of the complaint; in the -last case the answer was stricken out as frivolous. See Harvey v. Walker, 13 N. Y. Supp. 170, and Schroeder v. Capehart, 49 Minn. 525, where the answer was held good because not objected to. But where an answer is verified by the attorney instead of by the defend- ant himself, it may deny knowledge touching a sale alleged to have been made by defendant as commission merchant. Neuberger v. Webb, 24 Hun (N. Y.)347. Contra. In an action to recover for goods sold, defendant may deny the sale on information and belief. Rich- ards v. Fuechsel, 5 Civ. Pro. Rep. (N. Y. City Ct.) 430; Wood v. Watson, 23 N. Y. Wkly. Dig. 85 ; Harvey v. Walker. 59 Hun (N. Y.) 114. 4. Union Lumbering Co. v. Chippe- wa County, 47 Wis. 246; Goodell v. Blumer, 41 Wis. 444; Mills v. Jeffer- son, 20 Wis. 50 ; Hathaway v. Bald- win, 17 Wis. 616 ; State v. McGarry, 21 Wis. 496; Milwaukee v. O'Sullivan, 25 Wis. 666; Brown v. La Crosse City Gas Light, etc., Co., 21 Wis. 51; Col- lart v. Fisk, 38 Wis. 239; Zivi v. Ein- Denials of ANSWERS IN CODE PLEADING. Knowledge. Judgments. A party is precluded from denying on information and belief that a judgment was rendered against him. 1 Making of Contracts and Notes. Where a defendant admits the exe- cution of a contract he cannot deny information of its contents. 3 And whether a defendant made or indorsed a note, and whether he transferred it, is presumed to be within his own personal knowledge. If, therefore, he would answer these allegations he must admit or deny them positively. 3 But the maker of a note stein (City Ct.), 20 N. Y. Supp. 893; Mulcahy v. Buckley, 100 Cal. 484. Deeds. Where the complaint avers the making of a deed, sets it out in JHZC verba, and states the volume and page of the records where it is re- corded, a denial in the answer " of suf- ficient knowledge to form a belief " is not sufficient to raise an issue. Goodell v. Blumer, 41 Wis. 436. Likewise when there is an allegation of an as- signment of a mortgage, and the vol- ume and page of the record containing it are given, a denial of knowledge is sham, and should be stricken out. Wheaton v. Briggs, 35 Minn. 470. But the court laid stress on the fact that the answer was verified in the county in which the record was kept. Records of County Supervisors. The minutes of a board of county super- visors are such public records as will preclude any one from denying their alleged contents upon information and belief. State v. McGarry, 21 Wis. 496. Contra, People v. Curtis, I Idaho 754. Filing Copies. When a material fact is evidenced by official documents, and copies thereof are filed with the pleading, an answer that the defend- ant has no knowledge is insufficient, and admits the complaint. Barret v. Godshaw, 12 Bush (Ky.) 592. Letters of Administration. But a grant of letters of administration may be denied on information and belief. Wittmann v. Watry, 37 Wis. 238; Mor- row v. Cougan, 3 Abb. Pr. (N. Y. C. PI.) 328. Facts Not Disclosed by Eecord. All those facts which the record does not disclose may be denied on information and belief. A defendant may deny on information and belief the sufficiency of a recorded claim of lien. Hagman v. Williams, 88 Cal. 146. And the de- fendant may deny knowledge of an alleged fact that plaintiff paid taxes, since the records do not show by whom taxes are paid. Davis v. Lonk, 30 Wis. 308. 1. Such a denial should be stricken out as sham, because the party must know positively whether or not a judgment was rendered against him. Buller -v. Sidell, 43 Fed. Rep. 116; Roblin -v. Long, 60 How. Pr. (N. Y. Supreme Ct.) 200; Beebe v. Marvin, 17 Abb. Pr. (N. Y. Super. Ct.) 194. But there must be an allegation that he was served with process or that he entered his appearance. See cases supra. Not a Party. Where a judgment is pleaded, a denial of any knowledge, made by one not a party thereto, is good. Mower v. Stickney, 5 Minn. 407; Zivi -v. Einstein, 21 N. Y. Supp. 583. But where a stay bondsman was sued on his bond, and employed the same attorney that the defendant had, he was held precluded from denying any information or knowledge of the judgment, as he had but to ask the attorney. Hance v. Rumming, 2 E. D. Smith (N. Y.) 48. Compare Wesson v. Judd 1 , i Abb. Pr. (N. Y. C. PI.) 254; Mott v. Burnett, 2 E. D. Smith (N. Y. C. PI.) 50. 2. Wesson v. Judd, i Abb. Pr. (N. Y. C. PI.) 254; Lloyd v. Burns, 38 N. Y. Super. Ct. 223. Contra. Parties are not presumed to recollect the date or contents of written instruments not in their possession or control. Kellogg v. Baker, 15 Abb. Pr. (N. Y. Super. Ct.) 286. Denial of Making Contract. Where the complaint alleges the execution of a contract, and a copy of the alleged agreement is filed, a denial of knowl- edge of it is good, and cannot be stricken out as frivolous. Snyder i>. Bedell, 10 Rep. 217. See also Living- ston v. Hammer, 7 Bosw. (N. Y.) 670; People v. McCumber, 15 How. Pr. (N. Y. Supreme Ct.) 186; Caswell v. Bushnell, 14 Barb. (N. Y.) 393; Thorn v. New York Cent. Mills, 10 How. Pr. (N. Y. Supreme Ct.) 19. 3. Fales v. Hicks, 12 How. Pr. (N. Y. Supreme Ct.) 153, and Thorn v. New 814 Denials of ANSWERS IN CODE PLEADING. Knowledge. may deny knowledge of the indorsement or transfer of it by the payee. 1 Ownership. In an action on a note or bond, a denial of knowl- edge as to whether plaintiff is the owner should be struck out as frivolous. There must be positive allegations of title in a third person. 2 Questions of Law. Questions of law are not sufficiently denied by a statement that the party " has not sufficient information to form a belief." 3 York Cent. Mills, 10 How. Pr. (N. Y. Supreme Ct.) 19, applying the rule to a corporation. While a denial on information is bad, it cannot be stricken out as frivo- lous. Shearman v. New York Cent. Mills, i Abb. Pr. (N. Y. Supreme Ct.) 187. Where the defendant is sued on a note which has not been seen by him for over twenty years, and is lost and cannot be seen, a denial of his signa- ture on information and belief is suffi- cient to put in issue the execution of the note. Hall v. Woodward, 30 S. Car. 564. See Carroll County Sav. Bank v. Strother, 22 S. Car. 552. Amount Due. But an allegation of the amount due on a note may be de- nied on information and belief. Rich- ter v. McMurray, 15 Abb. Pr. (N. Y. C. PI.) 346. Iowa. In Iowa a defendant may deny knowledge of a note alleged to have been executed by him. McFar- land v. Lester, 23 Iowa 260. 1. Caswell v. Bushnell, 14 Barb. . Me Leran, 65 Cal. 34. Contra. A denial, on information and belief, that the thing sued for be- longs to plaintiff is sufficient. Towns- end v. Platt, 3 Abb. Pr. (N. Y. C. PI.) 325; Temple v. Murray, 6 How. Pr. (N. Y. Supreme Ct.) 329; Genesee Mut. Ins. Co. -v. Moyn^ben, 5 How. Pr. (N. Y. Supreme Ct.) 321; Snyder v. White, 6 How. Pr. (N. Y. Supreme Ct.) 321; Cunningham v. Skinner, 65 Cal. 385. See Hyde v. Kitchen (Su- preme Ct.), 21 N. Y. Supp. 238. Attorney's Authority to Sue. A de- fendant cannot deny on information and belief that the attorney has au- thority to represent the plaintiff. It is only upon a suitable suggestion of facts that the attorney will be required to show some authority. " Informa- tion and belief," however honestly en- tertained, are not sufficient to over- come the presumption arising from professional obligations, resting upon an attorney, that he will not abuse his privileges by representing a party without authority. Robinson v. Rob- inson, 32 Mo. App. 88; Keith v. Wil- son, 6 Mo. 435, 35 Am. Dec. 443; Valle v. Picton, 16 Mo. App. 178; San Fran- cisco v. Stande, 92 Cal. 560. 3. Kentucky River Nav. Co. v. Com. 13 Bush (Ky.) 436. A plea by the defendant that he "has no informa- tion sufficient to form a belief" as to Proof Under ANSWERS IN CODE PLEADING. General DeaiaL X. WHAT MAY BE PROVED UNDER A GENERAL DENIAL 1. Nature of a General Denial. As a rule a general denial under the Code is a mere traverse, in bar, of the facts pleaded in the complaint. 1 The General Issue. Under the Code there is no plea which meets the idea of the general issue under the old system.* whether certain ordinances were ever published "as required by law" is but a statement of his want of infor- mation as to the law, and is not good. Greer v. Covington, 83 Ky. 410. Com- pare Emery v. Baltz, 94 N. Y. 408. 1. Dutcher v. Butcher, 39 Wis. 651. Allegations of Complaint Determine its Scope. The scope of a general denial is wholly determined by the allega- tions of the complaint. Only the facts alleged in the complaint are denied by a general denial. Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93; Caldwell v. Bruggerman, 4 Minn. 270; Nash v. St. Paul, II Minn. 174; Northrup v. Mississippi Valley Ins. Co., 47 Mo. 435, 4 Am. Rep. 337; Causey v. Cooper, 41 Ga. 409; Coles v. Saulsby, 21 Cal. 47; Adams Express Co. v. Darnell, 31 Ind. 20; Lafayette, etc., R. Co. v. Ehman, 30 Ind. 83; Watkins v. Jones, 28 Ind. 12; Bate v. Sheets, 50 Ind. 329; Mor- gan v. Wattles, 69 Ind. 260; Beaty v. Swarthout, 32 Barb. (N. Y.) 293. The Test. Under a general denial the simple inquiry is, has the plaintiff proved what he has alleged in his peti- tion ? School Dist. v. Shoemaker, 5 Neb. 36; Jones v. Seward County, 10 Neb. 154. Equivalent to Specific Denials. A gen- eral denial is the same in effect as a specific denial of each of the allega- tions in the whole complaint. Stone v. Quaal, 36 Minn. 46. Admissions. A general denial will not put the plaintiff upon proof of facts elsewhere admitted in such an- swer. Farrell v. Hennessy, 21 Wis. 139; McWilliams v. Bannister, 40 Wis. 489. Striking Out. Every special defense which consists of matter which goes to disprove any material allegation in the complaint is defective, and must be stricken out on motion. Benedict v. Seymour, 6 How. Pr. (N. Y. Supreme Ct.) 298. 2. Van Ingen v. Newton, I Disney (Ohio) 458; Scott v. Morse, 54 Iowa 732; Hargan v. Burch, 8 Iowa 310; Bowen v. Hale, 4 Iowa 430; Dyson v. Ream, 9 Iowa 51; Walters v. Wash- ington Ins. Co., I Iowa 4043, 63 Am. Dec. 451; Hutchinson v. Sangster, 4 Greene (Iowa) 340; Wood v. Ostram, 29 Ind. 186; Girls' Industrial Home v, Fritchey, 10 Mo. App. 344. Under a general denial a defendant may not introduce evidence of all the facts which might have been proved under the general issue at common law, but he is confined to contesting the facts alleged in the petition; but he may introduce as evidence whatever goes to controvert the facts alleged in the petition. Oleson v. Hendrickson, 12 Iowa 222; Scott v. Morse, 54 Iowa 732. " But the Code, by requiring that an answer, in addition to a general or specific denial of the allegations in the complaint, when such a denial is made, shall state any new matter con- stituting a defense, when such a de- fense is meant to be relied on, has effectually abolished the general issue, as formerly understood. * * * The only effect of a general or specific denial in an answer of the material allegations of the complaint now is to cast the burden of proof upon the plaintiff; but where the necessary proof is given, if the answer contains nothing more than such a denial, the plaintiff is at once, and as a matter of course, entitled to a verdict or judg- ment." Per Oakley, Ch.J., in Texier v. Gouin, 5 Duer (N. Y.) 392. " Although the Code of Procedure has abrogated the common-law system of pleading, with all its technical rules, yet, in one respect, the new sys- tem which it has introduced bears a close analogy to that for which it has been substituted. The general denial allowed by the Code corresponds very nearly with the general issue in ac- tions of assumpsit and of debt on simple contract, at common law. The decisions upon the subject, therefore, in the English courts, although not obligatory as precedents since the changes introduced by the Code, will nevertheless be found to throw much light upon the question," etc. Per Selden, J., in McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696. Contra. A general denial under the 816 Proof Under ANSWERS IN CODE PLEADING. General Denial. To What Evidence Defendant is Limited. Under a general denial of the allegations in the complaint, the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish in order to sustain his action. 1 2. Payment. Where the complaint alleges the indebtedness Code is equivalent to the plea of the general issue at common law. Perkins v. Ermel, 2 Kan. 325. In Missouri there is a plea of "general issue" in preceedings before justices of the peace. Reed v. Snodgrass, 55 Mo. 180; Farmers', etc., Bank v. William- son, 61 Mo. 259. And in Alabama a general denial of each and every allega- tion in the complaint is neither more nor less than the general issue. Louis- ville, etc., R. Co. v. Trammell, 93 Ala. 350. But see Mobile, etc., R. Co. v. Gilmer, 85 Ala. 422; Equitable Ac- cident Ins. Co. v. Osborn, 90 Ala. 201. 1. New York. Andrews v. Bond, 16 Barb. (N. Y.) 633; Saunders v. Town- send, 26 Hun (N. Y.) 308; Little v. Denn, 34 N. Y. 452; Woolly v. New- combe, 87 N. Y. 605; Griffin v. Long Island R. Co., 101 N. Y. 348; Schaus v. Manhattan Gas Light Co., 14 Abb. Pr. N. S. (N. Y. Super. Ct.) 371; Wheeler v. Billings, 38 N. Y. 263; Greenfield v. Massachusetts Mut. L. Ins. Co., 47 N. Y. 430; Sawyer v. Warner, 15 Barb. (N. Y.) 282; Schwarz v. Oppold, 74 N. Y. 307; Boomer v. Koon, 6 Hun (N. Y.) 645; Miller v. North America's Ins. Co. i Abb. N. Cas. (N. Y. Supreme Ct.) 470; Moody v. Belden (Supreme Ct.), 15 N. Y. Supp. 119; Weaver v, Barden, 49 N. Y. 286; Clifford v. Dam, 81 N. Y. 56; O'Brien v. McCann, 58 N. Y. 373. Nebraska. Jones v. Fruin, 26 Neb. 76; Jones v. Seward County, 10 Neb. 154; School Dist. v. .Shoemaker, 5 Neb. 36; Burlington, etc., R. Co. v. Lancaster County, 7 Neb. 33; South Omaha v. Cunningham, 31 Neb. 316; Donovan v. Fowler, 17 Neb. 247; Has- sett v. Curtis, 20 Neb. 164; Richardson v. Steele, 9 Neb. 483; Creighton v. Newton, 5 Neb. 100; Winklerz/. Roeder, 23 Neb. 709, 8 Am. St. Rep. 155; Broadwater v. Jacoby, 19 Neb. 77; Burlington, etc., R. Co. v. Young Bear, 17 Neb. 668; Hedman v. Ander- son, 8 Neb. 180; Aultman v. Stichler, 21 Neb. 76; Cool v. Roche, 15 Neb. 24. Missouri. Northrup v. Mississippi Valley Ins. Co., 47 Mo. 435, 4 Am. Rep. 337; Nichols v. Winfrey, 79 Mo. 544- Texas. Mims z: Mitchell, i Tex. 443; McKaughan v. Harrison, 25 Tex. (Supp.) 461; Fowler z/. Davenport, 21 Tex. 626; Guess v. Lubbock, 5 Tex. 535; Towner v. Sayre, 4 Tex. 28; Hurt v. Blackburn, 20 Tex. 601; Robinson v. Brinson, 20 Tex. 438. Minnesota. Bond v. Corbett, 2 Minn. 248; Caldwell v. Bruggerman, 4 Minn. 190; Filley v. Register, 4 Minn. 296; Plummer v. Mold, 14 Minn. 532. California. Hawkins v. Borland, 14 Cal. 413; Whitmore v. Reynolds, 46 Cal. 380; Brown v. Kentfield, 50 Cal. 129. Indiana. Ferguson v. Ramsey, 41 Ind. 511. Kansas. McGrew v. Armstrong, 5 Kan. 284. Iowa. Johnson v. Pennell, 67 Iowa 669. Georgia. See also Woolfolk v. Beach, 61 Ga. 67; Dicksonz/. Saloshin, 54 Ga. 117; Johnson v. Shurley, 58 Ga. 417; Steadman v. Simmons, 39 Ga. 592. That Cause of Action Never Existed. Under the general denial defendant may prove any fact which goes to show that plaintiff never had any cause of action. Hoffman v. Parry, 23 Mo. App. 20; Northrup v. Mississippi Valley Ins. Co., 47 Mo. 444, 4 Am. Rep. 337; Greenway v. James, 34 Mo. 328; Meredith v. Santa Clara Min. Assoc., 56 Cal. 178; Koehler v. Adler, 91 N. Y. 657; Evans v. Williams, 60 Barb. (N. Y.) 346; Greenfield v. Mas- sachusetts Mut. L. Ins. Co., 47 N. Y. 430; Andrews v. Bond, 16 Barb. (N. Y.) 633; Weaver v. Bardea, 49 N. Y. 286. And likewise that the cause of action had not accrued when suit was brought. Mack v. Burt, 5 Hun (N. Y.) 28; Goddard v. Fulton, 21 Cal. 430; Burke v. Turney, 54 Cal. 486. Ownership of Cause of Action. Under a general denial the defendant may prove that the plaintiff does not own the cause of action sued on. Bond v. Long, 87 Mo. 266; Field v. Knapp, 108 N. Y. 87; Allis v. Leonard, 46 N. Y. 688; Wetmore v. City, 44 Cal. 294. But see Brett v. First Universalist Soc., 63 Barb. (N. Y.) 610. i Encyc. PI. & Pr. 52. 8l 7 Proof Under ANSWERS IN CODE PLEADING. General Denial. generally, without showing how that indebtedness was created, payment may be proved under a general denial. 1 3. Actions on Contracts. In an action upon a contract, under an answer of general denial, the plaintiff is limited to the contract al- leged in the complaint ; under a general denial the defendant may show that the contract between him and the plaintiff was a differ- 1. Marley v. Smith, 4 Kan. 155; Parkers. Hays, 7 Kan. 412; Greenfield v. Massachusetts Mut. L. Ins. Co., 47 N. Y. 431; Van Giesen v. Van Giesen, 10 N. Y. 316. See also post, NEW MATTER XIII. 8,/. Suing for Balance. Where the plain- tiff sues for a balance, and alleges generally that a sum is due, he in- vites an examination into the amount of the indebtedness, and under a general denial defendant may prove payment. Quin v. Lloyd, 41 N. Y. 350. And see the above case, where the complaint was construed as suing only for a balance, and not as stating the original transaction. Where a balance is sued for it is an admission of payment of all except the balance. White v. Smith, 46 N. Y. 418. Allegation of Nonpayment Must be a Material One. To entitle the defend- ant to prove payment under a general denial, the allegation of nonpayment in the complaint must be a material one, necessary to constitute the cause of action, Knapp v. Roche, 94 N. Y. 329; because a plaintiff cannot in his complaint anticipate the defense of payment by an allegation that no pay- ments have been made, Benicia Ag- ricultural Works -v. Creighton, 21 Oregon 495. See Wheeler, etc., Mfg. Co. v. Tinsley, 75 Mo. 458; Van Gieson v. Van Gieson, 12 Barb. (N. Y.) 520; Wimpy v. Gaskill, 76 Ga. 41. Payment as New Matter. The general rule is that, when the original trans- action or contract is set out, and not merely the indebtedness, then the de- fense of payment is new matter, and must be pleaded. McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696; Wilcox v. Joslin (Supreme Ct.), 10 N. Y. Supp. 342; Clark v. Mullen, 16 Neb. 481; Magenan v. Bell, 14 Neb. 8; Van Buskirk v. Chandler, 18 Neb. 584; Tootle -v. Maben, 21 Neb. 620; Lamb v. Thompson, 31 Neb. 448; Clark v. Spencer, 14 Kan. 407, 19 Am. Rep. 96; Stevens v. Thompson, 5 Kan. 305; Hawes v. Woolcock, 30 Wis. 213; Mar- tin v. Pugh, 23 Wis. 184. And see post, XIII. NEW MATTER. California. In California payment is never new matter; it may always be proved under a general denial. McLarren v. Spalding, 2 Cal. 510; Brooks v. Chilton, 6 Cal. 641; Frisch v. Caler, 21 Cal. 71; Goddard v. Ful- ton, 21 Cal. 430; Fairchild v. Ams- baugh, 22 Cal. 572; Davanay v. Eggen- hoff, 43 Cal. 395; Wetmore v. San Francisco, 44 Cal. 294; Farmers', etc., Bank v. Christensen, 51 Cal. 571. But see Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Hook v. White, 36 Cal. 299. The California Supreme Court reaches the conclusion that payment is not new matter because the aver- ment that a debt has not been paid, followed by a plea of payment, makes up an issue on the point. Frisch v. Caler, 21 Cal. 71. And in most ac- tions, notably those on notes, the complaint must allege nonpayment. Davanay v. Eggenhoff, 43 Cal. 398; Brown v. Orr, 29 Cal. 120. But see Hook v. White, 36 Cal. 299, where a specific denial of an allegation of non- payment was held sham. It is optional, though, with the de- fendant to plead payment as new mat- ter. Caulfield v. Sanders, 17 Cal. 569; McDonald v. Davidson, 30 Cal. 174. But where the payment is made after suit brought it is new matter, and must be pleaded. Glascock v. Ashman, 52 Cal. 493. It seems that not only may the de- fendant prove payment under a gen- eral denial, but that the onus of proving nonpayment devolves on the plaintiff. Farmers', etc., Bank v. Christensen, 51 Cal. 571. Iowa. In Iowa a plea of payment is not affirmative matter, and will not be taken as true if not replied to. Powesheik v. Mickel, 10 Iowa 76; Stacy v. Stichton, 9 Iowa 399; Garret- son v. Bitzer, 57 Iowa 469; Sinnamon v. Melbourn, 4 Greene (Iowa) 309. And the burden of proof is upon the plain- tiff to establish the fact of indebted- ness. Garretson v. Bitzer, 57 Iowa 469. 818 Proof Pndei ANSWERS IN CODE PLEADING. General Denial, ent one from that set out in the complaint, or that no contract at all was made. * Want of Consideration. In an action on contract the complaint must show a consideration ; and under a general denial the defendant may prove the want of it. a Invalidity. If the plaintiff's evidence shows the contract sued upon to be invalid or illegal, defendant may avail himself of the objection under a general denial. 3 Failure of Plaintiff to Perform The defendant, under a general de- nial, may show that the plaintiff has failed to perform, in whole or in part, the contract set out in the complaint. 4 1. Paris v. Strong, 51 Ind. 339; Chi- cago, etc., R. Co. v. West, 37 Ind. 215; Blizzard v. Applegate, 61 Ind. 368; Wheeler v. Billings, 38 N. Y. 263; Schermerhorn v. Van Allen, 18 Barb. (N. Y.) 29; Goodale v. Central Nat. Bank, 16 N. Y. Wkly. Dig. 364; Die- trich v. Dreutel (Supreme Ct.), 6 N. Y. St. Rep. 528; Healy v. Clark (C. PI.), 12 N. Y. St. Rep. 685; Marsh v. Dodge, 66 N. Y. 533; Goddard v. Fulton, 21 Cal. 430; Wilkerson v. Farnham, 82 Mo. 672. It is competent to show that the con- tract was conditional, and that the condition was not fulfilled, or has ter- minated the contract. Stewart v. Goodrich, 9 Mo. App. 125; Danen- baum v. Person (City Ct.), 25 N. Y. St. Rep. 849. So a custom or usage known to both parties may be proved, by way of showing that the contract made was not that alleged. Miller v. North America's Ins. Co., i Abb. N. Cas (N. Y. Supreme Ct.) 470. See also Manning v. Winter, 7 Hun (N. Y.) 482; Peck v. Winne, 51 N. Y. 641; Booth v. Pow- ers, 56 N. Y. 22; Schreyer v. New York, 39 N. Y. Super. Ct. i. That a note was made for accommo- dation and has become functus officio, is admissible under a general denial. Goddard v. Fulton, 21 Cal. 430. And a general denial puts the plain- tiff upon proof of the joint liability, if he would obtain a joint judgment. Stafford v. Nutt, 51 Ind. 535. 2. Evans v. Williams, 60 Barb. (N.Y.) 346; Dubois v. Hermance, 56 N. Y. 673, i Thomp. & C. (N. Y.) 293; El- dridge v. Mather, 2 N. Y. 157; Weaver v. Barden, 49 N. Y. 286; Butler v. Edgerton, 15 Jnd, 15; Bondurant v. Bladen, 19 Ind. 160; Bush v. Brown, 49 Ind. 573, 19 Am. Rep. 695. The rule only obtains where it is necessary to aver, or it is averred, in the complaint, what the consideration was. In an action on a contract the want of consideration would be new matter where it was not necessary to set out the consideration in the com- plaint. Nixon v. Beard, in Ind. 137. Failure of Consideration. Failure of consideration may be proved under a general denial. Brooks v. Chilton, 6 Cal. 641. 3. Gary v. Western Union Tel. Co., 20 Abb. N. Cas. (N. Y. Supreme Ct.)333; Tyler v. Larimore, 19 Mo. App. 445. The capacity of the parties is put in issue by a general denial. Cavender v. Waddingham, 2 Mo. App. 551; Painter v. Weatherford, i Greene (Iowa) 97. Proof that the contract is ultra vires, or that an officer of the corpora- tion had no authority to execute it, is admissible under a general denial. Smith v. Hall, 5 Bosw. (N. Y.) 319; Hall v. Auburn Turnpike Co., 27 Cal. 256, 87Am. Dec. 75. But evidence to show that the con- tract sued on was a wagering contract is inadmissible under a general denial. Cummiskey v. Williams, 20 Mo. App. 606. In Stafford Paving Co. v. Monheim- er, 41 N. Y. Super. Ct. 184, it was doubted whether the invalidity of a contract could be shown under a gen- eral denial. See also post, XIII. NEW MATTER. 4. Dunham v. Bower, 77. N. Y. 76, 33 Am. Rep. 570; Weinberg v. Blum, 13 Daly (N. Y.) 399; Chatfield v. Simonson, 92 N. Y. 209; Springer v. Dwyer, 50 N. Y. 19; Emery v. Pease, 20 N. Y. 62; Williams v. Slote, 70 N. Y. 6or; Manning v. Winter, 7 Hun(N. Y.)482; Krom v. Levy, i Hun (N.Y.) 171; Close v. Clark (C. PI.), 30 N. Y. St. Rep. 671; Reed v. Hayt, 51 N. Y. 819 Proof Under ANSWERS IN CODE PLEADING. General Denial. Sales. In an action to recover the price of goods alleged to have been sold and delivered to defendant, the defendant may show under a general denial that he never incurred indebtedness for the price. 1 Notes and Bills. Under a general denial of the execution of a note the proof is strictly limited to showing that defendant did not execute it; proof of collateral agreements nullifying its effect is inadmissible. 2 4. Judgments. Where, in an action upon a judgment, the de- fendant, by a general denial, puts in issue the existence of a regular, valid, and legal judgment, any evidence tending to show that the judgment is illegal or void is competent. 3 Super. Ct. 121 ; Moritz v. Larsen, 70 Wis. 569; Fabric Fire & Hose Co. v. Bilt Mfg. Co., 39 Fed. Rep. 98; Cald- well v. Bruggerman, 4 Minn. 270. Where the complaint is on a quan- tum meruit, evidence that the work was unskilfully done, or worth less than the amount claimed, is admissi- ble under a general denial. Raymond v. Richardson, 4 E. D. Smith (N. Y.) 171. See Bellinger v. Craigue, 31 Barb. (N. Y.) 534; Gates v. Preston, 41 N. Y. 113; Trimble v. Stillwell, 4 E. D. Smith (N. Y.) 512; Laraway v. Per- kins, 10 N. Y. 371. But see post, XIII. NEW MATTER. Under a denial that certain services were of the value specified, evidence cannot be given tending to show that the services were not rendered. Van Dyke v. Maguire, 57 N. Y. 430. 1. Only Part Delivered. That only part of the goods have been delivered is admissible under a general denial. Manning v. Winter, 7 Hun (N. Y.) 482. See Bormer v. Koon, 6 Hun (N. Y.) 645; Carr v. Jackson, cited in ^ Hun (N. Y.)484. Agency. The defendant may show that he purchased as agent for an- other to whom credit was given. Merritt v. Briggs. 57 N. Y. 651. Also that the person who sold, sold them as his own, and not as agent for plaintiff. Hawkins v. Borland, 14 Cal. 413. And also that the alleged agent had no authority to purchase for defendant. Hier v. Grant, 47 N. Y. 278; Day v. Wamsley, 33 Ind. 145. Value. Under a general denial the defendant may show that the goods sold were not of the value alleged in the complaint. Correio v. Lynch, 65 Cal. 274. 2. Dunning v. Rumbaugh, 36 Iowa 566. Fraud. Under a plea denying the execution of a note, defendant may prove that his signature was pro- cured by fraud. Corby v. Weddle, 57 Mo. 452. See Frisbee v. Langworthy, II Wis. 375; Jenkins v. Long, 19 Ind. 28, 81 Am. Dec. 374; Farmer v. Cal- vert, 44 Ind. 209; Glazer v. Clift, 10 Cal. 303. Delivery. Under a general denial the defendant may show that the note sued on was not delivered. Fisher v, Hamilton, 48 Ind. 239. Alteration. Evidence showing that a note hes been altered after execu- tion is admissible under a general de- nial. Bormer v. Koon, 6 Hun(N.Y.) 645; Schwarz v. Oppold, 74 N. Y. 307; National Bank v. Nickell, 34 Mo. App. 295; Walton Plow Co. v. Campbell, 35 Neb. 173. An alteration in the date of a bill of exchange payable at a specified period after date is a material alteration; and where the bill is declared on with its altered date, the defense is available to the acceptor under a traverse of the acceptance. Hirschman v. Budd, L. R. 8 Exch. 171. 3. Kinsey v. Ford, 38 Barb. (N. Y.) 195- The jurisdiction of the court render- ing the judgment sued on is put in issue under the general denial, but the merits of the judgment are not. Crone v. Dawson, 19 Mo. App. 214. A certified copy of the judgment record, showing that the judgment has been vacated, is admissible. Kinsey v. Ford, 38 Barb. (N. Y.) 195. Nul Tiel Record. The general de- nial answers to the plea of nul tiel re- cord at common law. Where a general denial is pleaded, a further answer of nul tiel record \s surplusage. Westcott v. Brown, 13 Ind. 83. 820 Proof Under ANSWERS IN CODE PLEADING, General Denial. Former Hecovery. If, on the case made by the complaint, the defendant is not called upon or has no opportunity to plead a former judgment as an estoppel, it may be received in evidence under a general denial. 1 5. Torts. Trespass De Bonis Asportatis Under a general denial in an action for taking or injuring plaintiff's goods, defendant can show that the goods taken or injured did not belong to plain- tiff. 2 Trover and Conversion. In an action for the conversion of property a general denial puts in issue both the conversion and the plain- tiff's title or right of possession. 3 1. Clink v. Thurston, 47 Cal. 21; Jackson v. Lodge, 36 Cal. 28; Flan- dreau -v. Downey, 23 Cal. 358; Young v. Rumnell, 2 Hill (N. Y.) 481, 38 Am. Dec. 594; Norris v. Amos, 15 Ind. 365; Gans v. St. Paul F., etc., Ins. Co., 43 Wis. 108. A judgment roll in a former suit, which does not constitute a bar, may be used in evidence without being pleaded. Kelsey v. Sargent (Su- preme Ct.), 3 N. Y. St. Rep. 477; Kre- keler v. Ritter, 62 N. Y. 372. See Schlussel v. Willett, 34 Barb. (N. Y.) 615. Arbitration and Award. An arbitra- tion and award upon the claim sued on may be proved under a general denial. Jones v. McGee, 7 N. Y. Wkly. Dig. 97- Res Judicata as New Matter. The general rule is that the defense of former recovery is new matter, which must be pleaded. Louisville, etc., R. Co. v. Cauley, 119 Ind. 142. See post, XIII. NEW MATTER. Contra. Former recovery is not new matter. Derby v. Hartman, 3 Daly (N. Y.)458. 2. Brown v. Elliott, 4 Daly (N. Y.) 329- In trespass de bonis asportatis, under a denial of ownership evidence is ad- missible to show that the sale under which the plaintiff claims title was made to defraud creditors, and is void. Greenway v. James, 34 Mo. 326. Likewise evidence is admissible that the taking was with plaintiff's consent. Wallace v. Robb, 37 Iowa 192. Iowa. A defendant cannot, under an answer setting out only a denial, excuse a trespass by proving the right of possession or title in some third person. Facts relied upon as a de- fense must be pleaded. Patterson v. Clark, 20 Iowa 429. See also Dyson v. Ream, 9 Iowa 51; Hargan v. Burch, 8 Iowa 310; Hutchinsonz/. Sangster, 4 Greene (Iowa) 340. 3. Robinson v. Frost, 14 Barb. (N. Y.) 536; Schoenrock -v. Farley, 49 N. Y. Super. Ct. 302; Ely v. Ehle, 3 N. Y. 506; Jacobs v. Remsen, 12 Abb. Pr. (N. Y. Supreme Ct.)3go; Beaty v. Swar- thout, 32 Barb. (N. Y.) 293: McKillip v. Burhaus, 12 N. Y. Wkly. Dig. 185; Driscoll v. Dunwoody, 7 Mont. 394. A conversion is an assault on an actual possession or on the right to possess. The "property" of which the plaintiff is deprived by the act of conversion the subject-matter of the right which is violated must be some- thing which he has the immediate right to possess; only on this condi- tion can the technical action of trover be maintained. Pollock Torts, 289. Therefore the defendant, under a general denial, may show title or a right of possession in himself. Me Clelland v. Nichols, 24 Minn. 176; Staubach v. Rexford, 2 Mont. 565: Gaskell v. Patton, 58 Iowa 163; Ed- g-erly v. Bush, 16 Hun (N. Y.) 80; Brevoort v. Brevoort, 40 N. Y. Super. Ct. 21 1 ; Schoenrock v. Farley, 49 N. Y. Super. Ct. 302. And he may show that, by the laws of a foreign country governing the case, the the title was in himself. Edgerly v. Bush, 16 Hun (N. Y.) 80. Likewise, under a general denial, the defendant may show title or the right of posses- sion in a third party. Davis z/. Hop- pock, 6 Duer (N. Y.) 254; Robinson v. Peru Plow, etc., Co., i Oklahoma 140. The Conversion. The defendant, un- der a general denial, may introduce evidence of any facts which disprove his conversion, Phoenix Mut. L. Ins. Co. v. Walrath, 53 Wis. 669; Willard v. Giles, 24 Wis. 319; Terry v. Mun- 821 Proof Under ANSWERS IN CODE PLEADING. General Denial. Eeplevin. In replevin, the plaintiff's cause of action depending essentially upon his right to the immediate possession of the property in controversy, a general denial puts in issue not only such right of possession, but every collateral fact necessary to the establishing of the same ; a general denial also puts in issue the fact of defendant's wrongful detainer. 1 ger, 49 Hun (N. Y.) 560; as, in the case of a common carrier, that he delivered to a third person, vho, by the course of business between the parties, was apparently authorized to receive, On- tario Bank v. New Jersey Steamboat Co., 59 N. Y. 510. Fraud and Rescission. Where it ap- pears that plaintiff claims title through a sale by defendant, the defendant, under a general denial, may show fraud to avoid the sale, and his rescis- sion of it. Johnson v. Oswald, 38 Minn. 550. Conversion of a Note. In an action for the conversion of a promissory note, under a general denial, evidence on the part of the defendant that the note was wrongfully and materially altered by the payee after execution and delivery is competent; likewise, under a general denial, evidence of the neglect or refusal of the maker of a note to pay it according to its terms is proper, in an action for its conver- sion, upon the question of value. Booth v. Powers, 56 N. Y. 22. See Quin v. Lloyd, 41 N. Y. 349. 1. Aultman v. Stichler, 21 Neb. 72; Richardson v. Steele, 9 Neb. 483; School Dist. -v. Schumacher, 5 Neb. 36; Creighton v. Newton, 5 Neb. 100; Hedman v. Anderson, 8 Neb. 180; Pulliam v. Burlingame, 81 Mo. m, 51 Am. Rep. 229; Stern Auction, etc., Co. T>. Mason, 16 Mo. App. 473; Bosse v, Thomas, 3 Mo. App. 472; St. Louis Drug Co. v. Dart, 7 Mo. App. 590; Young v. Glascock, 79 Mo. 574; Holm- berg v. Dean, 21 Kan. 73; Bailey v. Bayne, 20 Kan. 657; Yandle v. Crane. 13 Kan. 344; Brown v. Holmes, 13 Kan. 482; Heeron v. Beckwith, I Wis. 27; Child v. Child, 13 Wis. 18. The defendant may prove a right of possession in himself. Sparks v. Heritage, 45 Ind. 66; Schoenrock v. Farley, 49 N.Y. Super. Ct. 302. See Miller v. Brigham, 50 Cal. 615. Likewise, under a general denial, the defendant may show a right of pos- session in a third person. Chamber- lin v. Winn. I Wash. 501; Pulliam v. Burlingame, 81 Mo. in, 51 Am. Rep- 229; Young v. Glascock, 79 Mo. 574! Woodworth -v. Knowlton, 22 Cal. 164; Wetmore v. San Francisco, 44 Cal- 294; Kennedy v. Shaw, 38 Ind. 474; Farmer v. Calvert, 44 Ind. 209; Thomp- son v. Sweetser, 43 Ind. 312; Davis v. Warfield, 38 Ind. 461; Sparks v. Heri- tage, 45 Ind. 66; Lane v. Sparks, 75 Ind. 278; Branch -v. Wiseman, 51 Ind. i; Wiler v. Manley, 51 Ind. 169. The statement that the defendant may show a right of possession in a third person needs some explanation. Trespass and other violations of pos- sessory rights can be committed not only against the person who is lawfully in possession, but against any person who has legal possession, whether rightful in its origin or not, so long as the intruder cannot justify his act under a better title. A mere stranger cannot be heard to say that one whose possession he has violated was not en- titled to possess. Unless and until a superior title or justification is shown, existing legal possession is not only presumptive but conclusive evidence of the right to possess. Therefore an outstanding claim of a third party, the jus tertii, as it is called, cannot be set up to excuse either trespass or conver- sion. Pollock on Torts, 300. At common law, and also under the Revised Statutes of New York, there were two actions of replevin, one in the cepit and one in the detinet. In replevin in the cepit the general issue put in issue only the taking. Under the plea of non cepit the defendant could not show title in himself or in a stranger. As it was necessary in such an action for the plaintiff only to show that he was in possession of the prop- erty and that the defendant wrong- fully took it from his possession, the plea of non cepit only put in issue the wrongful taking. Without more, prop- erty in a third person could be no de- fense to such an action. Therefore, in order to defend an action of re- plevin in the cepit, the defendant was bound to prove property either in him- 822 Proof Under ANSWERS IN CODE PLEADING. General Denial. Malicious Prosecution. In an action for malicious prosecution, evi- dence to rebut the allegation of malice is admissible under a gen- eral denial. 1 Fraud. Where the ground on which recovery is sought is fraud, self or in a third person, with which he was in some way connected and under which he could justify. But in an action of replevin in the detinet, the general issue put in issue as well the plaintiff's property in the goods as the detention thereof by the defend- ant. And it is in this latter sense, where the action is founded, not on a wrongful taking and detention, but only on a wrongful detention, that under a general denial the defendant may show a title in a stranger, with- out connecting himself with it. Grif- fin v. Long Island R. Co., 101 N. Y. 348; Siedenbach v. Riley, in N. Y. 560. Replevin by Mortgagees. Under a general denial, in an action of replevin by a mortgagee, the defendant may prove that the alleged mortgage is a forgery. Gaudy v. Pool, 14 Neb. 98. Likewise the mortgagor may show that the mortgage is void for usury. Adamson v. Wiggins, 45 Minn. 448. In an action of replevin by a mort- gagee for the possession of mortgaged property, the defendant in possession may. for the purpose of defeating the plaintiff's right of recovery, prove, under the general denial, a sale of the property by her to the plaintiff subse- quent to the execution and delivery of the mortgage, and his refusal to take the goods and pay her the contract price. Deford v. Hutchison, 45 Kan. 318. The defendant, under a general de- nial, may show that the plaintiff is a mortgagee of the property, instead of absolute owner. O'Neil v. Murry, 6 Dakota 108. Fraud. In an action of replevin, fraud in the acquisition of the plain- tiff's title may be proved by the de- fendant under the general denial. Stern Auc;ion, etc., Co. v. Mason, 16 Mo. App. 473; Sopris v. Truax, I Colo. 89; Bailey v. Swain, 45 Ohio St. 657; Jansen v. Effey, 10 Iowa 227; Branch v. Wiseman, 51 Ind. i; Staubach v. Rexford, 2 Mont. 566; Grum v. Barney, 55 Cal. 254; Humphreys v. Harkey, 55 Cal. 283; Stephens v. Hallstead, 58 Cal. 193. Contra, Frisbee v. Langworthy, n Wis. 376. Demand. The absence and necessity of demand before action may be in- sisted upon by defendant under a gen- eral denial. Burckhalter v. Mitchell, 27 S. Car. 240. Estoppel. Matter of estoppel may be availed of under a general denial. Towne v. Sparks, 23 Neb. 143. Lien. The defendant, under a gen- eral denial, may show that he has a lien. Lindsay v. Wyatt, I Idaho 738. Waiver. Likewise a waiver of right to the property maybe shown. Oester v. Sitlington, 15 Mo. 247. Kansas. In Kansas, in replevin, all that is necessary in order to enable the defendant to prove any defense which he may have is to deny all the allega- tions of the plaintiff's petition. Bailey v. Bayne, 20 Kan. 657. Nebraska. In Nebraska, under the statute, upon a plea of general denial, in actions of replevin, the defendant may have affirmative relief in dam- ages. Creighton v. Newton, 5 Neb. 100. See Merrill v. Wedgwood, 25 Neb. 283. 1. Benedict v. Seymour, 6 How. Pr. (N. Y. Supreme Ct.) 298; Ammerman v. Crosby, 26 Ind. 454; Wilkinson v. Arnold, n Ind. 45. Probable Cause. A general denial puts in issue the want of probable cause. Rost v, Harris, 12 Abb. Pr. (N. Y. Super. Ct.) 446; Radde -v. Ruck- gaber, 3 Duer (N. Y.) 684; Simpson v. McArthur. 16 Abb. Pr. (N. Y. C. PI.) 302, note. Guilt. The defendant, under a gen- eral denial, may show the guilt of the plaintiff. Bruley v. Rose, 57 Iowa 651. Advice of Counsel. The defendant may show, under a general denial, that he acted in good faith on the ad- vice of counsel. Sparling v. Conway, 75 Mo. 510; Levy v. Brannan, 39 Cal. 485. Compare Hunter v. Mathis, 40 Ind. 356; Trogden v. Deckard, 45 Ind. 572; Scheer v. Keown, 34 Wis. 349. Grand Juror. In an action against a grand juror for malicious prosecution, the defendant may, under an answer of general denial, avail himself of the protection afforded him by the law. Hunter v. Mathis, 40 Ind. 356. 823 Proof Under ANSWERS IN CODE PLEADING. General Denial. and the facts constituting the fraud are alleged in the complaint, a general denial puts the plaintiff to proof of it, and entitles the defendant to prove all such facts as disprove the fraud. 1 Negligence. In an action for damages for negligence the defend- ant, under a general denial, may prove that he was not negligent, and to that end may show whatever acts of prudence and caution he employed.' 2 1. Van Alstyne v. Norton, i Hun (N.Y.)537- In an action for damages for fraudu- lently concealing a defect in a thing sold, the fact that defendant had com- municated the defect to plaintitiff is admissible under a general denial. Howell v. Biddlecom, 62 Barb. (N. Y.) 131- And where a complaint alleged a fraudulent hypothecation of plaintiff's securities to defendants, the dafend- ants, under a general denial, may show that they are bona-fide holders for value. Hennequin v. Butterfield, 43 N. Y. Super. Ct. 411. Attacking Title. Where defendant's title is attacked on the ground of fraud, he may, under a general denial, intro- duce any proof showing that his title is not fraudulent. Ray v. Teabout, 65 Iowa 157. Summers v. Hoover, 42 Ind. 153; as that the conveyance al- leged to have been mad.e in fraud of creditors was the conveyance of a homestead which a debtor may convey. Hibben v. Soyer, 33 Wis. 319. 2. Kendig v. Overhulser, 58 Iowa 195; Stevens v. Lafayette, etc., Gravel Road Co., 99 Ind. 392; Jonesboro, etc., Turnpike Co. v. Baldwin, 57 Ind. 86; Hathaway v. Toledo, etc., R. Co., 46 Ind. 25; Indianapolis, etc., R. Co. v. Rutherford, 29 Ind. 82, 92 Am. Dec. 336; Jones -v. Sheboygan Co., 42 Wis. 306. In an action against a carrier for negligence in losing a package, evi- dence is admissible, under a general denial, that the package was stolen without the fault of the carrier. Ad- ams Express Co. v. Darnell, 31 Ind. 20. Negligence of Third Person. Under a general denial the fact that the injury was caused by the negligence of others may be shown. Schular v. Hudson River R. Co., 38 Barb. (N. Y.) 653; Schaus z/. Manhattan Gas Light Co., 14 Abb. Pr. N. S. (N. Y. Super. Ct.) 371. See also New Haven, etc., R. Co. v. Quintard, 6 Abb. Pr. N. S. (N. Y- Super. Ct.) 128; Gilbert v. Sage, 5 Lans. (N. Y.) 287; Howell v. Biddle- com, 62 Barb. (N. Y.) 131; St. John v, Skinner, 14 Abb. Pr. N. S. (N. Y. Super. Ct.) 371, note. In an action against a railroad com- pany for the loss of goods, under a general denial evidence is admissible that the road was not in the control of the defendants, but was in the hands of a receiver. Kansas Pac. R. Co. v. Searle, n Colo. i. See Merchants' Loan Co. v. Clair, 36 Hun (N. Y.) 367; Corser v. Russell, 20 Abb. N. Cas. (N. Y.) 316; Andrews v. Miles, 15 N. Y. Wkly. Dig. 290. Negligence as a Defense. In an action for work and labor upon a qtiantum nieruit, under a general denial negli- gence may be shown. Raymond z>. Richardson, 4 E. D. Smith (N. Y.) 171; Bridges -v. Paige, 13 Cal. 640. See Schermerhorn v. Van Allen, 18 Barb. (N. Y.) 29; Merritt v. Briggs, 57 N. Y. 651. Ownership. Under a general denial, in an action for damage to plaintiff's goods through defendant's negligence, defendant may show that the goods injured did not belong to plaintiff. Brown v. Elliott, 4 Daly (N. Y.) 329. Contributory Negligence. Some au- thorities hold that contributory negli- gence need not be specially pleaded, but is available under the general issue. See Farner v. Simmons Hard- ware Co., 10 Mo. App. 596; Indianapo- lis, etc., R. Co. "v. Rutherford, 29 Ind. 82; Hathaway v. Toledo, etc., R. Co., 46 Ind. 25; Evansville, etc., R. Co. v. Hiatt, 17 Ind. 102; Jonesboro, etc., Turnpike Co. v. Baldwin, 57 Ind. 86; Jones -v. 'Sheboygan, 42 Wis. 306; Mc- Quade v. Chicago, etc., R. Co., 68 Wis. 616; MacDonell v. Buffum, 31 How. Pr. (N. Y. Supreme Ct.) 154; New Haven, etc., Co. v. Quintard, 6 Abb. Pr. N. S. (N. Y. Super. Ct.) 128. But the prob- able weight of authority is that con- tributory negligence is new matter, and must be specially pleaded. See, for a full treatment of this subject, article CONTRIBUTORY NEGLIGENCE. 824 Proof Under ANSWERS IN CODE PLEADING. General Denial. 6. Ejectment and Other Matters Pertaining to Real Estate. In an action for recovery of real property it is sufficient in the defend- ant to deny generally the title alleged in the petition ; and under such a denial he may prove any fact tending to show that plain- tiff has not the title, or the right of possession. 1 1. Wicks v. Smith, 18 Kan. 508; Over v. Shannon, 75 Ind. 352; Tracy v. Kel- ley, 52 Ind. 535; Emily v. Harding, 53 Ind. 102; Steeple v. Downing, 60 Ind. 478; Webster v. Bebinger, 70 Ind. 9; Vanduyn v. Hepner, 45 Ind. 589 ; Lain v. Shepardson, 23 Wis. 224; Mather v. Hutchinson, 25 Wis. 27 ; Raynor v. Timerson, 46 Barb. (N. Y.) 518; Punderson v. Love, 3 Tex. 60; Rivers v. Foote, n Tex. 662; Dalby v. Booth, 16 Tex. 563; Mann v. Falcon, 25 Tex. 271; Willson v. Cleaveland, 30 Cal. 192; Semple v. Cook, 50 Cal. 26; Jackson v. Lodge, 36 Cal. 29; Northern Pac. R. Co. v. McCormick, 55 Fed. Rep. 601. Compare the following cases, which hold that any facts which show the in- validity of the title set up by plaintiff in an action to recover personal prop- erty are admissible under a general denial: Grum v. Barney, 55 Cal. 254; Humphreys v. Harkey, 55 Cal. 283; Stephens v. Hallstead, 58 Cal. 193. Paramount Title in Defendant. A de- fendant may, in such an action, for the purpose of defeating the plaintiff's title, show, under a general denial, a paramount title in himself, provided such title carries with it the right of possession, whether such title is legal or equitable, and whether the plain- tiff's title is legal or equitable. Clay- ton v. School District, 20 Kan. 256; Hall v. Dodge, 18 Kan. 277; Wicks v. Smith, 18 Kan. 508 ; Armstrong v. Brownfield, 32 Kan. 116; Bancroft v. Chambers, 10 Kan. 364; Mastin v. Gray, 19 Kan. 467, 27 Am. Rep. 149; Mitchell v. Insley, 33 Kan. 658; Bruck v. Tucker, 42 Cal. 346; Marshall v. Shafter, 32 Cal. 177; Sneed v. Osborn, 25 Cal. 630; Roberts v. Columbet, 63 Cal. 22; Daniels v. Henderson, 49 Cal. 242, an action to recover rents and profits; Stone v. Bumpus, 40 Cal. 429, an action to abate a nuisance. Title in Third Person. The plaintiff in an action of ejectment must always recover on the strength of his own title, not on the weakness of the de- fendant's. Therefore the defendant, under a general denial, in order to show that plaintiff is not entitled to the possession, may show title out of the plaintiff, and in a third person, at the time of the commencement of the action. Raynor v. Timerson, 46 Barb. (N. Y.) 518. But the right to set up title in a third person is limited. Ejectment is a mere possessory action; if the plaintiff suc- ceeds, all that is necessarily proved is that he has a right to be put in pos- session. If the plaintiff had an actual possession, without title, this will war- rant a recovery against a defendant who has no title, but only a subse- quent possession. Where no title ap- pears on either side, a prior posses- sion will prevail over a subsequent one. Title in a third person, then, can be shown under a general denial only when such a title carries with it the right to possession. If the defend- ant, as a mere trespasser, has violated the plaintiff's actual possession, it is no defense that a third person has title. Bird v. Lisbros, 9 Cal. i, 70 Am. Dec. 617; Bledsoe v. Simms, 53 Mo. 308; Crockett v. Morrison, n Mo. 3. See Smith v. Lorillard, 10 Johns. (N. Y.) 338; Dicey on Parties, 486. Under a general denial a party may prove title in his wife. Bledsoe v. Simms, 53 Mo. 305. Abandonment. The fact that the plaintiff, or those under whom he claims, had abandoned the land may be shown under a general denial. Bird v. Lisbros, 9 Cal. i, 70 Am. Dec. 617; Kimball v. Gearhart, 12 Cal. 50; Bell v. Brown, 22 Cal. 672; Willson v. Cleave- land, 30 Cal. 192; Bell v. Bed Rock Tunnel, etc., Co., 36 Cal. 214; Moren- haut v. Wilson, 52 Cal. 263. Ouster. In an action of ejectment by one tenant in common against another, the ouster is admitted by a general denial. La Riviere v. La Riviere, 77 Mo. 512. Mining Rules. Mining rules and customs in proof of ownership may be given in evidence under a general denial. Colman v. Clements, 23 Cal. 245- Estoppel. It is doubtful whether, in 825 Pioof Under ANSWERS IN CODE PLEADING. General Denial. Forcible Entry and Detainer. In an action of forcible entry and de- tainer, all matters of legal excuse, justification, or avoidance can be given in evidence by the defendant under a general denial. 1 Action to Quiet Title. In a proceeding under the statute to quiet title, where the answer is a general denial, the issue of the plain- tiff's possession is the only issue under the pleadings. 2 Trespass Quare Clausum Fregit. In trespass quare clausum frcgit it is incumbent on the plaintiff to show that he was in the actual possession of the premises at the time of the alleged trespass, and the defendant may prove, under a general denial, any fact which shows that plaintiff was not in possession. 3 Action on Warranty. In an action for a breach of the covenant of warranty, the defendant, under a general denial, may show that there was no paramount title. 4 The Statute of Limitations Ordinarily the statute of limitations is new matter to be pleaded. But in cases of ejectment some authorities hold that, where the statute operates, it vests the absolute title to the property, and that there is no more necessity of pleading it than though defendant held the plaintiff's title. 5 ejectment, estoppel can be proved under a general denial. Creque v. Sears, 17 Hun (N. Y.) 123. Fraud. Under a general denial the defendant may show that a deed in plaintiff's chain of title was procured by fraud. Staley v. Housel, 35 Neb. 160; Franklin v. Kelley, 2 Neb. 80. May Attack Plaintiffs Title in Any Manner. The defendant, when he pleads the general denial, may attack plaintiff's title in any manner; he may show that the proceedings by which it was acquired are invalid and void. Benton v. Hatch, 43 Hun (N. Y.) 142, a sheriff's deed, held to be invalid; Kipp v. Bullard, 30 Minn. 84, and Mobley v. Griffin, 104 N. Car. 112, both cases where the execution sale was invalid because it conveyed a homestead ; Roberts v. Chan Tin Pen, 23 Cal. 260, where the tax deed under which plain- tiff claimed was allowed to be shown invalid; Miles v. Lingerman, 24 Ind. 385, the case of an infant's deed; Fra- ser v. Charleston, n S. Car. 486, the defense of title diverted by equitable assignment; Hickman v. Link, 97 Mo. 483, allowing the defendant to engraft a trust on a deed. Oregon. In an action of ejectment, where the defendant merely traverses the allegations in the complaint , and does not set up title in himself or an- other, the defendant will be confined in his evidence to such facts only as tend to show the weakness of the plain- tiff's title. Phillippi v. Thompson, 8 Oregon 428. 1. Watson v. Whitney, 23 Cal. 376. 2. Murphy v. De France, 23 Mo. App. 337- 3. Uttendorffer v. Saegers, 50 Cal. 496, where the defendant was allowed to prove that a tenant of the plaintiff was in the actual possession. See Earl v. Bowen, 3 N. Y. Wkly. Dig. 461, where the defendant offered in evidence, under a general denial, a judgment in a former action of tres- pass, for the purpose of proving that he was formerly in possession of the locus in quo. Texas. In Texas, in an action quare clausum fregit, the general issue is not a denial of the plaintiff's possession. Carter v. Wallace, 2 Tex. 206. 4. Rhode v. Green, 26 Ind. 83. See Walker v. Fleming, 37 Kan. 171. The ownership of realty as a pro- bative fact may be given in evidence under the general issue when owner- ship of personalty is the fact in issue. Grewell v. Walden, 23 Cal. 165. 5. Nelson v. Brodhack, 44 Mo. 596, 100 Am. Dec. 328; Bledsoe v. Simms, 53 Mo. 305; Campbell v. Laclede Gas Light Co.. 84 Mo. 352; Fulkerson v. Mitchell, 82 Mo. 13; Hill v. Bailey, 76 Mo. 454; Davis v. Peveler, 65 Mo. 189; Goff v. Roberts, 72 Mo. 570; Fair- banks v. Long, 91 Mo. 628; Stocker v. Green, 94 Mo. 280; Holmes v. Kring, 93 Mo. 452; Vail v. Halton, 14 Ind. 826 Denial as a Plea ANSWERS IN CODE PLEADING, in Abatement. The Statute of Frauds. Likewise some authorities hold that those contracts touching land which the Statute of Frauds requires to be in writing are void if not so, and that the statute may be relied on under a general denial. 1 7. Mitigating Circumstances. Mitigating circumstances and par- tial defenses are new matter to be specially pleaded ; but under a general denial the question of actual damages is raised, and it has been held that all mitigating circumstances which might at common law have been given in evidence under the general issue may still be given under a general denial. 2 XL THE GENERAL DENIAL AS A PLEA IN ABATEMENT. The gen- eral denial does not perform the functions of a plea in abatement. Under the Code system of pleading the general denial is in one respect equivalent to the general issue at common law ; it does not put in issue the plaintiff's title to sue. 3 The incapacity of 344. See Punderson v. Love, 3 Tex. 60; Rivers v. Foote, n Tex. 662 ; Dalby v. Booth, 16 Tex. 563; Mann v. Falcon, 25 Tex. 271; Maxwell v. Camp- bell, 45 Ind. 360; Watkins v. Jones, 28 Ind. 12; Evansville v. Evans, 37 Ind. 229; Wicks v. Smith, 18 Kan. 508; Powers v. Armstrong, 36 Ohio St. 357; Vore v. Woodford, 29 Ohio St. 245. And see article LIMITATIONS, STATUTE OF, and this article, post, XIII. 6. 1. Wiswell v. Tefft, 5 Kan. 263; Allen v. Richards, 83 Mo. 55; Springer v. Kleinsorge, 83 Mo. 152; Schergens v. Wetzell, 12 Mo. App. 596; Hook v. Turner, 22 Mo. 333 ; Bernhardt v. Walk, 29 Mo. App. 206 ; Smith v. Theobold, 86 Ky. 141. But see Graff v. Foster, 67 Mo. 512; Donaldson v. Newman, 9 Mo. App. 235; Gordon v. Madden, 82 Mo. 193. And see article FRAUDS, STATUTE OF, and this article, post, XIII. 7. 2. Wandell v. Edwards, 25 Hun (N. Y.) 498; Beardsley v. Bridgman, 17 Iowa 290; Smith v. Lisher, 23 Ind. 500. See Ronan v. Williams, 41 Iowa 680; Davenport Gas Light, etc., Co. v. Davenport, 15 Iowa 6; Peck v. Par- chen, 52 Iowa 46; Martin v. Swear- ingen, 17 Iowa 346; Desmond v. Brown, 33 Iowa 13 ; McClintock v. Crick, 4 Iowa 453 ; Marker v. Dunn, 68 Iowa 720. In an action for conversion partial satisfaction by one tort feasor may be given in evidence under the general denial. Muser v. Lewis, 14 Abb. N. Cas. (N. Y. Super. Ct.) 333. In an action to recover damages for the alienation of the affections of plaintiff's wife, evidence to show that he and his wife did not live happily together, and that the wife had no affection for plaintiff, and that he lost nothing by deprivation of her society, is admissible under a general denial. Edwards v. Nichols, 21 N. Y. Wkly. Dig. 238. And under a general denial, in an action for breach of promise, evidence that the plaintiff drank to excess is admissible in mitigation of damages. Button v. McCauley, 5 Abb. Pr. N. S. (N. Y. Ct. of App.) 29. Libel and Slander. Under the gen- eral denial, in an action for libel, the defendant may prove the truth of the charge, not as a defense, but in miti- gation not only of punitive, but also of compensatory damages. Halstead v. Schempp, 6 Cine. L. Bull. (Ohio) 271. And in slander the general bad character of plaintiff may be shown under a general denial. Anonymous, 8 How. Pr. (N. Y. Supreme Ct.) 434. Contra, Anonymous, 6 How. Pr. (N. Y. Supreme Ct.) 160. In Indiana, matters in mitigation, in actions for libel and slander, should be specially pleaded, but in all other actions they are admissible under a general denial. Smith v. Lisher, 23 Ind. 500. 3. White v. Moses, n Cal. 70; Cheatham v. Riddle, 12 Tex. 112; Clifton v. Lilley, 12 Tex. 130; Tram- mell -v. Swan, 25 Tex. 473; Downs v, McCombs, 16 Ind. 211; Harrison v. Martinsville, etc., Co., 16 Ind. 505, 79 Am. Dec. 447; Heaston v. Cincinnati, etc., R. Co., 16 Ind. 275, 79 Am. Dec. 430; Jones v. Cincinnati Type Foundry 827 Denial as a Plea ANSWERS IN CODE PLEADING, in Abatement the plaintiff to sue will be waived if a mere general denial is used. The point must be taken affirmatively in the answer. 1 Existence of a Corporation. No corporation, either foreign or domestic, is required to prove its corporate existence when the general denial alone is used. Such a form of denial does not raise the issue. 3 Co., 14 Ind. 89; Sandford z>. McCreedy, 28 Wis. 103; Ewen v. Chicago, etc., R. Co., 38 Wis. 613. But where the plaintiff sued as " ex- ecutrix and residuary legatee," and the answer alleged that defendant had no knowledge or information sufficient to form a belief as to that averment, it was held that the plaintiff, under this form of denial, must prove her ca- pacity. Wittmann v. Watry, 37 Wis. 238. Missouri. In Missouri a general de- nial puts in issue the incorporation of the plaintiff, where the incorporation ' is not by public act, and the suit is not upon a contract made with the plaintiff under the name by which it sues. Girls' Industrial Home v. Fritchey, 10 Mo. App. 344. See Farmers', etc., Bank v. Williamson, 61 Mo. 259. And an allegation in the petition that the plaintiff is administrator is put in issue by a general denial.. Gil- more v, Morris, 13 Mo. App. 114. See State v. Price, 21 Mo. 434. 1. Dillaye v. Parks, 31 Barb. (N. Y.) 132; Castree v. Gavelle, 4 E. D. Smith (N. Y.) 4 2 5 . The defense that plaintiff is a mar- ried woman and has not legal capacity to sue cannot be proved under a gen- eral denial. Dillaye v. Parks, 31 Barb. (N. Y.) 132. The appointment of a guardian ad litem for an infant plaintiff is not put in issue by a general denial. Schenck v. Hagar, 24 Minn. 339. See Fetz v. Clark, 7 Minn. 217; Fogle v. Schaeffer, 23 Minn. 304. That there is a defect of parties plaintiff cannot be proved under a gen- eral denial. Abbe v. Clark, 31 Barb. (N. Y.)238. Compare the following cases: U. S. v. Shoup, 2 Idaho 459; Erskine v. Wil- son, 20 Tex. 77; Gregg v. Johnson, 37 Tex. 558; Compton v. Western Stage Co., 25 Tex. Supp. 67. 2. Williams Reaper Co. v. Smith, 33 Wis. 530; Central Bank v. Knowlton, 12 Wis. 624, 78 Am. Dec. 769; Connec- ticut Mut. L. Ins. Co. v. Cross, 18 Wis. 109; Farmers' Trust Co. v. Fisher, 17 Wis. 114; National L. Ins. Co. v. Rob- inson, 8 Neb. 452; Zunkle v. Cun- ningham, 10 Neb. 162; Dietrich v. Lin- coln, etc., R. Co., 13 Neb. 43; Herron v. Cole, 25 Neb. 692; Bank of Havana v. Wickham, 7 Abb. Pr. (N. Y. Su- preme Ct.) 134; Bank of Genesee v. Patchin Bank, 13 N. Y. 312; Palmetto Lumber Co. v. Risley, 25 S. Car. 309; American Button-Hole, etc., Co. v. Hill, 27 S. Car. 164; St. Anthony Falls Water Power Co. v. King Bridge Co., 23 Minn. 186, 23 Am. Rep. 682; Wood- son v. Milwaukee, 21 Minn. 60; In- dianapolis Furnace, etc., Co. v. Herki- mer, 46 Ind. 142; Cicero Hygiene Draining Co. v. Craighead, 28 Ind. 274; Heaston v. Cincinnati, etc., R. Co., 16 Ind. 275, 79 Am. Dec. 430; Dunning v. New Albany, etc., R. Co., 2 Ind. 437; Railsbach v. Liberty, etc., Turnpike Co., 2 Ind. 656; Hubbard v. Chappel, 14 Ind. 601; Price v. Grand Rapids, etc., R. Co., 18 Ind. 137. See article CORPORATIONS. Denial of Knowledge. Nor does a general denial of knowledge or infor- mation put the corporate existence in issue. Liberian Exodus Joint Stock Steamship Co. -v. Rodgers, 21 S. Car. 27- Contract with View to Organize. Where the contract sued on is one made with an existing corporation, the general denial is an admission of the corporate existence; but where the contract is made with a view to the organization of a corporate body, the plaintiff, after a general denial, must prove its incorporation. Chance v. Indianapolis, etc., Gravel Road Co., 32 Ind. 472; Wert v. Crawfordsville, etc., Turnpike Co., 19 Ind. 242; Will- iams v. Franklin Tp. Academical Assoc., 26 Ind. 310. Incorporation of Defendant. The con- verse of the rule that a plaintiff cor- poration need not prove its existence when a general denial is interposed is equally true. Thus, vrhere an action is brought against a defendant by a name implying a corporation, and in 828 General Denial ANSWERS IN CODE PLEADING. Limited. Partnership. An allegation of the existence of a partnership is admitted by a general denial. 1 XII. THE GENEEAL DENIAL LIMITED IN SCOPE BY STATUTE. Some of the States have by statutory provision limited the scope of the general denial in certain cases. Texas has a statute to the effect that when an action is founded on any instrument or note in writing its execution must be denied by affidavit.'-* In loiva the genuineness of a signature to a written instrument must be de- nied in writing under oath. 3 In Indiana the general denial does not, unless sworn to, put in issue the execution of a written in- strument. 4 Missouri provides by statute that the execution of a that name such defendant forms an issue by general denial and goes to trial, it is not necessary for the plain- tiff to introduce any evidence of the existence of the corporation. Adams Express Co. v. Hill, 43 Ind. 157. New York. The statute which ab- solves the plaintiff from proving its corporate existence unless nul tiel corporation is pleaded applies only to corporations created by a statute of the state. Under a general denial a foreign corporation must prove its corporate character. Waterville Mfg. Co. v. Bryan, 14 Barb. (N. Y.) 182. Likewise a general denial will com- pel a joint stock association to prove its existence. Saltsman v. Shults, 14 Hun(N. Y.)256. 1. Fisk v. Tank, 12 Wis. 306, 78 Am. Dec. 737; Whitman v. Wood, 6 Wis. 676; Martin v. American Express Co., 19 Wis. 336; Lee v. Hamilton, 12 Tex. 413; Congdon. v. Monroe, 51 Tex. 109; Drew v. Harrison, 12 Tex. 279; Per- sons v. Frost, 25 Tex. Supp. 129; Lewis v. Lowery, 31 Tex. 663; Gush- ing v. Smith, 43 Tex. 261. 2. Art. 2262 Sayles Tex. Civil Sts. vol. i. 704. A general denial does not put the plaintiff upon proof of the execution of the note sued on. Bed- well v. Thompson. 25 Tex. Supp. 245; Able v. Chandler, 12 Tex. 88, 62 Am. Dec. 518; Kinnard v Herlock, 20 Tex. 48; Lewin v. Houston, 8 Tex. 94. But the plaintiff must produce the note. Davis -v. Marshall, 25 Tex. 372; Bed- well v. Thompson, 25 Tex. Supp. 245; Matossy v. Frosh, 9 Tex. 610; Bond v. Mallow, 17 Tex. 636. But if the note is alleged to be lost a general denial puts in issue its execution. Erskine v. Wilson, 20 Tex. 77. A general denial in a suit to estab- lish a rejected claim against an estate puts the plaintiff on proof of such ac- count. Kendall v. Riley, 45 Tex. 20. 3. Hall v. ^Etna Mfg. Co., 30 Iowa 215. But the statute providing that the signature to a written instrument shall be deemed genuine unless de- nied under oath relates only to the genuineness of the signature, and the defendant in an action on a note may, under a plea of non est factum, not under oath, show that he never signed the instrument sued on. Lake v. Cruikshank, 31 Iowa 375. And the denial of the " execution " of the note sued on is not sufficient to cast upon the plaintiff the burden of proving the genuineness of the signa- ture, but will permit the defendant to prove that the signature is not genu- ine. Sully v. Goldsmith, 49 Iowa 690. The act of 1853 did not require an answer to an action on a note, deny- ing any indebtedness, and the execu- tion of the note, to be verified. Lyon v. Bunn, 6 Iowa 49. See also Seachrist v. Griffiths, 6 Iowa 390; Partridge v. Patterson, 6 Iowa 514; Sheldon v. Middleton, 10 Iowa 17; Tannon v. Robinson, 10 Iowa 272; Hall v. .(Etna Mfg. Co., 30 Iowa 215; Carle v. Cor- nell, ii Iowa 374; Twogood v. Coop- ers, 9 Iowa 415; Taylor v. Runyan, 9 Iowa 522; Wolff v. Hagensick, 10 Iowa 590; Markey v. Mettler, i Iowa 528; Shepard v. Ford, 10 Iowa 502; Gilbert v. Mosier, n Iowa 498; Mitch- ell v. Moore, 24 Iowa 394. 4. Evans v. Southern Turnpike Co., 18 Ind. 101. And the general denial must be verified if it puts in issue the genuineness of an indorsement. Steb- bins v. Goldthwait, 31 Ind. 159. Compare the following California cases, which hold that a general de- nial to an unverified complaint on a note puts indorsement in issue: Gro- gan v. Ruckle, i Cal. 159; Youngs v. Bell, 4 Cal. 201; Hastings v. Dollar- hide, 18 Cal. 391; Mahe v. Reynolds, 38 Cal. 560. But it is otherwise if the 829 ffro Hatter. ANSWERS IN CODE PLEADING. General Nature. written instrument must be specifically denied under oath. 1 Conditions Precedent. Some states have statutes which allow the plaintiff to aver, generally, that he has performed all the con- ditions precedent on his part to be performed ; but this does not allow the defendant to controvert such allegation by a general denial. 2 XIII. NEW MATTER. 1. General Nature Definition. " New mat- ter " means matter extrinsic to the matter set up in the complaint as the basis of the cause of action. 3 Must be Pleaded. It is a settled rule of Code pleading that new matter by way of confession and avoidance must be specially pleaded. 4 action is against an indorser on his indorsement. Mahe v. Reynolds, 38 Cal. 560. But a general denial, not sworn to, will compel the plaintiff to produce the note. Hicks v. Reigle, 32 Ind. 360. The statute prescribing that the execution of a writing shall be denied on oath applies only where the writ- ing offered in evidence purports to have been executed by an actual party to the instrument. Riser v, Snoddy, 7 Ind. 442, 65 Am. Dec. 740. And in an action against an administrator or executor on a note of the decedent an unverified general denial puts in issue the execution of the instrument. Ca- wood v. Lee, 32 Ind. 44; Mahon v. Sawyer, 18 Ind. 73; Riser v. Snoddy, 7 Ind. 442, 65 Am. Dec. 740. 1. The objection that a bond sued on has no seal will not be considered unless the execution is denied under oath; a general denial does not raise the issue. State v. Chamberlin, 54 Mo. 338. 2. Preston v. Roberts, 12 Bush (Ky.) 571. Compare Tisdale v, Mitchell, 12 Tex. 68. 3. Manning v. Winter, 7 Hun (N. Y.) 482. New matter is where the contract is admitted, and the matter set up avoids the contract not where the matter set up denies the contract. Gilbert v. Cram, 12 How. Pr. (N. Y. Supreme Ct.) 455; Stoddard v. Onon- daga Annual Conference, 12 Barb. (N. Y. 573; Wabrod v. Bennett, 6 Barb. (N. Y.) 144; Radde v. Ruckgaber, 3 Duer (N. Y.) 684; Bellinger v. Craigue, 31 Barb. (N. Y.) 534; Brazill v. Isham, 12 N. Y. 9; Carter v. Koezley, 14 Abb. Pr. (N. Y. Super. Ct.) 147. A defense that concedes that plain- tiff once had a good cause of action, but insists that it no longer exists, in- volves new matter. Churchill v. Bau- mann, 95 Cal. 542; Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Greenway v. James, 34 Mo. 326; Evans v. Will- iams, 60 Barb. (N. Y.) 347. New matter is the averment of facts different from those alleged in the complaint, and not embraced within the judicial inquiry into their truth. Lupo -v. True, 16 S. Car. 586; Hudson v. Wabash Western R. Co., 101 Mo. 13; Northrup v. Mississippi Valley Ins. Co., 47 Mo. 444, 4 Am. Rep. 337; Bridges v. Paige, 13 Cal. 641. New matter is that which under the rules of evidence the defendant must affirmatively establish. If the onus of proof is thrown upon the defend- ant, the matter to be proved by him is new matter. Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Glazer v. Clift, 10 Cal. 304; McCarty v. Roberts, 8 Ind. 150. Whatever averments of the answer amount to an admission of the allega- tions of the complaint, and tend to es- tablish some fact not inconsistent with such allegations, are new matter. Mauldin v. Ball, 5 Mont. 96. Answer by Infant. The same rules which determine what new matter is in the case of adults obtain in the case of an answer by an infant. It is the duty of a guardian ad litem to as- certain the facts pertining to the con- troversy intrusted to him, and, if they constitute new matter, to plead them. Roe v. Angevine, 7 Hun (N. Y.)679. Compare Sawyer v. Gates (Supreme Ct.), 14 N. Y. St. Rep. 236. 4. California. Ladd -v. Stevenson, I Cal. 18; Kendall v. Vallego, i Cal. 371 ; Gaskill v. Moore, 4 Cal. 233; Piercy v. Sabin, 10 Cal. 22, 70 Am. 830 New Matter. ANSWERS IN CODE PLEADING. Pleading. 2. Manner of Pleading introductory. The right to rely on the de- fense pleaded must be affirmatively shown by the answer, 1 and Dec. 692; Coles v. Soulsby, 21 Cal. 47; Goddard v. Fulton, 21 Cal. 430; Mc- Comb v. Reed, 28 Cal. 281, 87 Am. Dec. 115; McDonald v. Davidson, 30 Cal. 173; Moss v. Shear, 30 Cal. 469; Ayres v. Bensley, 32 Cal. 620. Nebraska. Quick v. Sachasse, 31 Neb. 312. Wisconsin. Gay v. Fret well, 9 Wis. 186. North Carolina. Johnson v. Bell, 74 N. Car. 355. Texas. Smith v. Sherwood, 2 Tex. 460; Keeble v. Black, 4 Tex. 69; Love v. Mclntyre, 3 Tex. 10 ; Ulims v. Mit- chell, i Tex. 443. New York. McKyring v. Bull, 16 N. Y., 297, 69 Am. Dec. 696; Venice v. Breed, 65 Barb. (N. Y.) 598; Catlin v. Gunter, i Duer(N. Y.) 253; Allen v. Mercantile Mut. Ins. Co., 46 Barb. (N. Y.) 642; Ayrault v. Chamberlain, 33 Barb. (N. Y.) 229; Jacobs v. Rem- sen, 36 N. Y. 668; Carters. Koezley, 14 Abb. Pr. (N. Y. Super. Ct.) 147; Tilson v. Clark, 45 Barb. (N. Y.) 178; Savage v. Corn Exch., etc., Nav. Ins. Co., 4 Bosw. (N. Y.) i; Fry v. Ben- nett, 28 N. Y. 324; Beaty v. Swarth- out, 32 Barb. (N. Y.) 293; Rapalee v. Stewart, 27 N. Y. 310; Dingeldein v. Third Ave. R. Co., 9 Bosw. (N. Y.) 79; Pier v. Finch, 29 Barb. (N. Y.) 170; Mechanics Bank v. Foster, 44 Barb. (N. Y.) 87; Morrell v. Irving F. Ins. Co., 33 N. Y. 429; 83 Am. Dec. 396. Evidence of Defense Not Set Up. A defendant will not be allowed to give evidence of a defense not set up in his answer. Diefendorff v. Gage, 7 Barb. (N. Y.) 18 ; Button v. McCauley, 38 Barb. (N. Y.) 413; Baker v. Bailey, 16 Barb. (N. Y.) 54; Wright v. Delafield, 25 N. Y. 266; Fay v. Grimsteed, 10 Barb. (N. Y.) 321; Kelsey v. Western, 2 N. Y. 501 ; Sandford v. Travers, 7 Bosw. (N.Y.)4g8; New York Cent. Ins. Co. v. National Protection Ins. Co., 20 Barb. (N. Y.) 468; Field v. New York, 6 N. Y. 179; Bucknam v. Brett, 13 Abb. Pr. (N. Y. Supreme Ct.) 119. And an affirmative defense is of no avail if not pleaded, though the testi- mony discloses it. Dingeldein v. Third Ave. R. Co., 9 Bosw. (N. Y.) 79, where the illegality in a contract sued on was shown by the evidence. See also Paige v. Willet, 38 N. Y. 28; New York Cent. Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85; Richards v. Al- len, 3 E. D. Smith (N. Y.) 399. Allegation on Information and Belief. Affirmative matter in an answer may be alleged " upon information and be- lief " with the same effect as in a com- plaint. Risden v. Davenport (S. Dak., 1894), 57 N. W. Rep. 482. Thus, in an answer, an allegation of payment upon information and belief is suffi- cient. First Nat. Bank v. Roberts, 2 N. Dak. 195. The Insertion of Superfluous Allegations in the Complaint does not make such allegations merely traversable by de- fendant. If they are of new matter their anticipation by plaintiff does not relieve defendant from pleading them. Hyde v. Hazel, 43 Mo. App. 671. New Matter as Complete Defense. When the new matter set up in the answer amounts to a complete defense, it is not necessary to traverse any of the allegations of the petition. Kort- zendorfer v. St. Louis, 52 Mo. 204. South Carolina. The Code in this state does not recognize special pleas. Smith v. Chamberlain, 38 S. Car. 530. 1. Gillett v. Hill, 32 Iowa 220. An Answer to One Count of a com- plaint should specify to which count it is intended to apply. Kneedler v. Sternbergh, 10 How. Pr. (N. Y. Su- preme Ct.) 68. Stating Distinct Grounds of Defense. An answer which fails to state sepa- rately the distinct grounds of defense will be rejected if excepted to in apt time. Keathley v. Branch, 88 N. Car. 379- Putting Court in Possession of Facts. A pleader who would resist the collec- tion of notes given in the purchase of lands must by his allegations put the court in possession of all the facts necessary to enable it to do complete equity. Cooper v. Singleton, 19 Tex. 260, 70 Am. Dec. 333. Setting Out Proofs. But a defend- ant, having stated a defense, is not bound so to define it, or rather enlarge it, as to set out the proofs by which it is to be established. Pacific Mail S. S. Co. v. Irwin, 67 Barb. (N. Y.) 277. Setting Up Supposed Claim for Plaintiff. The defendant cannot set up a sup- posed or presumed ground of claim for plaintiff and then plead to it him- self, and thus put the plaintiff to the 831 Few Matter. ANSWERS IN CODE PLEADING. Pleading. care must be taken to insert in the answer allegations sufficient to support every element and constituent part of the defense. 1 Giving Color. An answer seeking to avoid the complaint by new matter should confess, directly or by implication, that but for the matter of avoidance contained in it the action could be main- tained/* necessity of pleading to it also. Kil- bourne v. Lockman, 8 Iowa 380. Thus, where an answer purports to admit a certain fact, as stated in the petition, and the petition does not state any such fact, held, that the answer will not be construed as alleging affirma- tively that such fact exists, so as to require the plaintiff to reply thereto. Hoisington v. Armstrong, 22 Kan. no. Yet where the complaint avers a fact, qualified by a particular inten- tion, the answer may admit the fact and deny the intention. Kingsley v. Oilman, 12 Min. 515. 1. An answer of tender, omitting to allege that the money has been paid into court, does not state facts suffi- cient to constitute a defense, and plain- tiff may avail himself of the objection upon trial. Becker v. Boon, 61 N. Y. 317. Where a consideration is necessary to support a release, in pleading the release as a defense the consideration for it must also be pleaded. Peters v. Clements, 52 Tex. 140. In pleading a pending attachment or garnishment as a defense, the defend- ant should show whether the whole or any portion of the debt has been at- tached or garnished. Clark v. Mar- bourg, 33 Kan. 471. Although by statute the performance of conditions precedent in a contract may be stated generally, if the defend- ant relies on a failure to perform them, this is new matter, and the answer must specify the particulars in which such conditions have not been per- formed. Preston v. Roberts, 12 Bush (Ky.)57i. In further illustration of the rule stated in the text, see Baskin v. Godbe, i Utah 28; Hager v. Blake, 16 Neb. 12 ; O'Donohue v. Hendrix, 13 Neb. 257; Burlington, etc., R. Co. v. Kear- ney County, 17 Neb. 515 ; State v. Manning, 55 Mo. 142 ; Krause v. Thomas, 53 Minn. 209; Huyler v. Da- honey, 48 Tex. 234; Welborn v. Nor- wood, i Tex. Cir. App. 614; Hyde v. Kitchin, 21 N. Y. Supp. 238, 66 Hun (N. Y.) 633. Allegation of Legal Notice. The alle- gation, "after due notice, as required by law," is a sufficient allegation of a legal notice. State v. Nolan, 99 Mo. 570. Where it is necessary to give a notice in writing the surety may avail him- self of a written notice to the holder to sue the maker, under an averment in the answer that he had requested plaintiff to sue the maker, without an allegation that the notice was in writ- ing. Coats v. Swindle, 55 Mo. 31. Not Real Party in Interest. A mere allegation that the plaintiff is not the real party in interest is not sufficient. The facts must be set out which will enable the court to say that the plain- tiff is not the real party in interest. Lamson v. Falls, 6 Ind. 309; Raymond v. Pritchard, 24 Ind. 318; Heretti v. Smith, 33 Ind. 514. But in an action upon a judgment, an allegation in the answer that plaintiff is not, but that another per- son, naming him, is the owner of such judgment, presents a good defense, though the particulars of the assign- ment are not stated. Holcombe v. Tracy, 2 Minn. 241. 2. McMurray v. Gifford, 5 How. Pr. (N. Y. Supreme Ct.) 15; Tobias v. Rogers, 3 Code Rep. (N. Y.) 156; State v. Williams, 48 Mo. 210; Howes v. Carver, 7 Iowa 491; Hutchinson v. Sangster, 4 Greene (Iowa) 340; Martin v. Swearengen, 17 Iowa 346; Anson v. Dwight, 18 Iowa 241; Morgan v. Hawkeye Ins. Co., 37 Iowa 359. Pleading conditionally, or in the al- ternative, is not allowable. Bauer v. Wagner, 39 Mo. 385. But the confession may be by impli- cation as well as directly. See Mor- gan v. Hawkeye Ins. Co., 37 Iowa 359, where the answer was held to sufficiently confess by implication a cause of action: also Abbott v. Sar- tori, 57 Iowa 656, where the answer was held not to contain sufficient con- fession to warrant proof of matter in avoidance. But in an Action for Slander the de- fendant may allege mitigating circum- 832 New Matter. ANSWERS IN CODE PLEADING. Pleading. Payment. The rule as to the degree of certainty required in the plea of payment is the same as that in other pleas ; facts which constitute the evidence of payment need not be stated. 1 Fraud. A general plea of fraud is subject to demurrer. The specific statements and acts relied upon as constituting the fraud must be set out. 2 stances without confessing the speak- ing of the words. Desmond v. Brown, 33 Iowa 13. See McClintock v. Crick, 4 Iowa 453; Marker v. Dunn, 68 Iowa 720. 1. Wells -v. Fairbank, 5 Tex. 582; Cartwright v. Jones, 13 Tex. I. An allegation of payment, without show- ing that the payment was made on ac- count of the claim sued upon, is in- sufficient. Each v. Hardy, 22 Minn. 65. A plea of payment in general terms is good if not excepted to. Hc4- liman v. Rogers, 6 Tex. 91. See First Nat. Bank v. Bews, 2 Idaho 1175; Phillips v. Jarvis, 19 Wis. 204, where the pleas of payment were held good. And see Manufacturers' Nat. Bank v. Russell, 6 Hun (N. Y.) 375, and State v. Central Pac. R. Co., 9 Nev. 79, where the pleas of payment were held defective. A plea of payment to the assignor of a chose in action must allege that the payment was made before notice of the assignment. Indianapolis, etc., R. Co. v. Hyde, 122 Ind. 188. Compare Shauverz/. Philips (Ind. App., 1893), 32 N. E. Rep. 1131; Holzhauer v. Heine, 37 Mo. 443. Specifying Time. A plea of payment need not specifically state the several times when partial payments were made; a general plea of payment is sufficient. Hendrix v. Gore, ! Oregon 407. Contra. The plea should be specific as to time. Hahn v. Broussard, 3 Tex. Civ. App. 481; Gray v. McFarland, 29 Tex. 163; O'Neal v. Phillips, 83 Ga. 556. Stating Amount. A payment may be pleaded without naming the amount paid. Bobb v. Bancroft, 13 Kan. 123; Joy v. Cooley, 19 Mo. 645. Contra, Hahn v. Broussard, 3 Tex. Civ. App. 481. What May Be Pleaded as Payment. Any valid agreement between the par- ties which would operate to discharge the debt may be pleaded as a pay- ment. McLaughlin v. Webster, 141 N. Y. 76; Wheeler v. Faurot, 37 Ohio St. 27; Hart v. Crawford, 41 Ind. 197; Wolcott v. Ensign, 55 Ind. 70. Contra, Able v. Lee, 6 Tex. 427. See Lowry v. Shane, 34 Ind. 495; Farmers', etc.. Bank v. Sherman, 33 N. Y. 69; Hoddy v. Osborn, 9 Iowa 517; Pemberton v. Simmons, 100 N. Car. 317. But under a plea of payment evi- dence going to excuse mwpayment is inadmissible. Voak v. National In- vestment Co., 51 Minn. 450. 2. Minnesota. Cummings v. Thomp- son, 18 Minn. 246; Brown v. Manning, 3 Minn. 13, 74 Am. Dec. 736; Kelley v. Wallace, 14 Minn. 173. Indiana. Joest v. Williams, 42 Ind. 565, 13 Am. Rep. 377; Ham v. Greve, 34 Ind. 18; Curry v. Keyser, 30 Ind. 214; Keller v. Johnson, n Ind. 337, 71 Am. Dec. 355; Fankbouer v. Fank- bouer, 20 Ind. 62; Jenkins v. Long, 19 Ind. 28, 81 Am. Dec. 374. Iowa. Ockendon v. Barnes, 43 Iowa 615; Mills v. Collins, 67 Iowa 164; Hale v. Walker, 31 Iowa 344, 7 Am. Rep. 137. Missouri. Hoester v. Samuelmann, 101 Mo. 619; Casey v. Smales, 4 Mo. 77; Moore v. Thompson, 6 Mo. 353; Jolliffe- v. Collins, 21 Mo. 338; Hill v. Miller, 36 Mo. 182; Smalley v. Hale, 37 Mo. 102; Wood v. Evans, 43 Mo. App. 230; Jones v. St. Louis, etc., R. Co. 79 Mo. 92; Martin v. Lutkewitte, 50 Mo. 58; Peers v. Davis. 29 Mo. 184; Hodges v. Torrey, 28 Mo. 103; Duffy v. Byrne, 7 Mo. App. 418. New York. McMurray v. Gifford, 5 How. Pr. (N. Y. Supreme Ct.) 14. California. Oroville, etc., R. Co. v. Plumas County, 37 Cal. 355; Capuro v. Builders' Ins. Co., 39 Cal. 123; Gushee v. Leavitt, 5 Cal. 160. See Hale v. Walker, 31 Iowa 344, 7 Am. Rep. 137, and Foy v. Haughton, 83 N. Car. 467, where the pleas ol fraud were held insufficient. Seealso Van Wy v. Clark, 59 Ind. 259, where the defense of fraud was held suffi- ciently stated. In a defense upon the ground of fraudulent representations it is not sufficient to aver that the representa- I Encyc. PI. & Pr. 53. 833 New Matter. ANSWERS IN CODE PLEADING. Pleading. Want of Consideration. The answer of a want of consideration may consist of the general statement that there was no consideration, without any further or more particular statement. 1 Justification. A plea of justification must state particularly the the matters relied on. 2 tions were false; the pleader must show wherein they were false. Specht v. Allen, 12 Oregon 117. But to Avoid the Estoppel of a Judg- ment it is sufficient to allege that it was obtained by fraud, without stating the facts that constitute the fraud. Edgell v. Sigerson, 20 Mo. 494. In Pleading a Fraudulent Issue of Bonds it is not sufficient to do so in general terms. Specific facts consti- tuting the presumption of fraud must be alleged. Cummings v. Lawrence County, i S. Dak. 158. Fraudulent Conveyance. An allega- tion that a conveyance was made with intent to delay and defraud the grant- or's creditors is sufficient as an allega- tion of fraud. Probert v. McDonald, 2 S. Dak. 495. 1. Hunter v. McLaughlin, 43 Ind. 45; Bush v. Brown, 49 Ind. 573, 19 Am. Rep. 695; Webster v. Parker, 7 Ind. 185; Ohio Thresher, etc., Co. v. Hensel (Ind. App., 1894), 36 N. E. Rep. 716; Williams v. Mellon, 56 Mo. 262. See Barr z/. Baker, 9 Mo. 850; Doan v. Mass. 20 Mo. 297; Smith v. Hutchin- son, 61 Mo. 83; Lindell v. Rokes, 60 Mo. 249, 21 Am. Rep. 395; Merrick v. Phillips, 58 Mo. 436; Bennett v. Tor- lina, 56 Mo. 309; Myers v. Van Wag- oner, 56 Mo. 115; Sumner v. Summers, 54 Mo. 340; Porter v. Jones, 52 Mo. 399; Hamilton v. Marks, 63 Mo. 167; Williams v. Jensen, 75 Mo. 681. The statement that there was a total failure of consideration is a statement of a conclusion of law. German Bank v. Mulhall, 8 Mo. App. 558. It has been held that a plea of want of consideration in general terms is subject to a motion for a more specific statement. Simpson Centenary Col- lege v. Bryan, 50 Iowa 293. But if no motion is made the objection is waived. Chamberlain v. Painesville, etc., R. Co., 15 Ohio St. 225. In an action on a note given for the price of land an answer averring fail- ure of consideration inconsequence of a defect in the title must set out in what the defect consists. Staley v. Ivory, 65 Mo. 74; Copeland v. Loan, 10 Mo. 266; Morrow v. Bright, 20 Mo. 298; Clifton v. Brundage, 25 Tex. 331. And a copy of the deed must be filed with the answer. Mahoney v. Rob- bins, 49 Ind. 147. Counterclaim. A plea of wan>t of consideration is a technical defense, not a counterclaim. Jolliffe v. Collins, 21 Mo. 339. But if the answer alleges facts sufficient to constitute either the defense of want of consideration or that of a recoupment of damages, it is not necessary for defendant to state which he will rely upon; and if he so states, he will not be precluded from insisting upon any defense which the facts alleged will justify. Springer v. Dwyer, 50 N. Y. 20. 2. Barley v. Cannon, 17 Mo. 595. It must identify the trespass justified with that complained of. Isley v. Huber, 45 Ind. 421. In pleading an order of a township board for the opening of a road as a justification to an action for trespass, it is necessary to plead specially the facts which authorized the board to make the order, or to state generally that the order was duly made. Rob- inson v. Jones, 71 Mo. 582. The answer to a petition to recover damages for the loss of goods cast overboard by the carrier must show al! the facts necessary to justification of the jettison. Bentley v. Bustard, 16 B. Mon. (Ky.) 643, 63 Am. Dec. 561. Arrest and Imprisonment. A plea justifying the arrest of the plaintiff, on the ground that a crime had been committed, and that there was reason- able ground to suspect and accuse the plaintiff, must distinctly state the rea- sons for so suspecting him. Boynton v. Tidwell, 19 Tex. 118. And the an- swer must identify the arrest justified with that complained of. Gallimore v. Ammerman, 39 Ind. 323. Slander. An ansv;er merely stating that the words spoken are true is not sufficient as a justification; it should state the facts constituting the crime or offense imputed so that an issue of either law or fact may be found. At- teberry v. Powell, 29 Mo. 429, 77 Am. 834 tfew Matter. ANSWERS IN CODE PLEADING. Pleading. Usury. An answer setting up usury must aver clearly every particular necessary to establish the usury charged, and must distinctly negative every supposable fact which, if true, would render the transaction innocent or lawful. 1 Illegality of Contract. Where the illegality of a contract sued on is relied on as a defense, the answer must specify wherein it is ille- gal, and all the facts going to render it void must be pleaded. 2 Duress. An answer setting up duress and coercion must aver the facts constituting it. 3 Accord and Satisfaction. A plea of accord and satisfaction must state that the matter relied upon as an accord was accepted as a satisfaction by the creditor. 4 Estoppel in Pais. An estoppel in pais should be pleaded with particularity. 5 Dec. 579. And see George v. Lemon, 19 Tex, 150; Trimble v. Foster, 87 Mo. 49, 56 Am. Rep. 440. After verdict in an action of slander it is too late to object to the insuffi- ciency of the justification set forth in the answer. Evans v. Franklin, 26 Mo. 252. See article LIBEL AND SLANDER. 1. Gaston v. McLeran, 3 Oregon 389; Clayes v. Hooker, 4 Hun (N. Y.) 231; Rountree v. Brinson, 98 N. Car. 107; Moore v. Woodward, 83 N. Car. 531; Oldham v. Bank, 85 N. Car. 241. The Code has not altered the rule that the defense of usury must be distinct- Car. 578. for a wager upon an election must state that the election was one author- ized by law, and what particular elec- tion it was. Sybert v. Jones, 19 Mo. 86. An answer alleging that money was advanced for an illegal purpose must also state that it was so used. Howell v. Stewart, 54 Mo. 400. And where the illegality of a con- tract is relied on as a defense, the an- swer must state that the plaintiff had knowledge of the illegality and partici- pated in it. Wallace v. Lark, 12 S. ly set up in the plea or answer, and that the terms of the usurious agree- ment and the quantum of the usurious interest or premium must be distinctly and correctly set up. Manning v. Tyler, 21 N. Y. 567; Anglo-American Land, etc., Co. v. Brohman, 33 Neb. 409; Keim v. Avery, 7 Neb. 54. But see Gebhart v. Sorrels, 9 Ohio St. 462, where the plea of usury was held good, although it failed to nega- tive exceptions in the usury statute. As Counterclaim. When usury is set up without it being stated whether it is set up as a defense or as a counter- claim, it will be deemed to be set up as a strict defense, and that only. Burrall v. De Groot, 5 Duer (N. Y.) 379- 2. In a suit to recover on a note the answer set up that the note was based on a " gambling transaction." Held, that, in the absence of specific averments stating what the real char- acter of the transaction was, an ex- ception to that portion of the answer was properly sustained. McCamant v. Batsell. 59 Tex. 363. The defense that a note was given Superfluous Allegation. If the facts which show that the contract was un- lawful are set out, there is no neces- sity to aver the mere conclusion of law, that the consideration was illegal. Moffatt v. Bulson, 96 Cal. 106. 3. Richardson v. Hittle, 31 Ind. 119; Connecticut L. Ins. Co. v. McCormick, 45 Cal. 580. It must be distinctly stated by whom the duress was made. An allegation of duress by one will not sustain proof of duress by another. Lord v. Lind- say, 18 Hun (N. Y.)484. 4. Wilkerson v. Bruce, 37 Mo. App. 156; Shaw v. Burton, 5 Mo. 478. But a failure in this respect cannot be taken advantage of after verdict. Wilkerson v. Bruce, 37 Mo. App. 156. An allegation that the notes have been " satisfied and discharged" does not constitute a plea of accord and satisfaction. Hogan v. Burns (Cal., I 8g3), 33 Pac. Rep. 631. See article ACCORD AND SATISFACTION, and post, XIII, 8, s. 5. McKeen v. Naughton, 88 Cal. 462; Buck v. Milford, 90 Ind. 291; Stewart v. Beck, 90 Ind. 458; Robbins 835 New Matter. ANSWERS IN CODE PLEADING. Pleading. Res Judicata. The party relying upon a former adjudication as a defense must aver in his answer in what court the judgment was rendered, and must plead facts showing that the recovery was upon the same subject-matter and between the same parties, or their privies, as the suit in which the defense of res judicata is made, and must aver that the judgment is in full force. 1 Statute of Limitations. The statute of limitations is properly pleaded only by alleging the facts which would make the statute applicable. 2 Equitable Defenses. The defendant may set up an equitable de- fense in an action at law, but if he relies on an equitable right of action as a defense, he must plead the same as fully as if he were bringing an action in equity. 3 Contributory Negligence. A plea of contributory negligence should set out the facts constituting the negligence. 4 v. Magee, 76 Ind. 381; Lash v. Ren- 32 Mo. App. 258; Hunter v. Hunter, 50 dell, 72 Ind. 475. As to what suffi- Mo. 445. ciently pleads an estoppel in pais, see In pleading the statute care must be Barnhart v. Fulkerth, 90 Cal. 157; also taken not to plead legal conclusions Texas Banking, etc., Co. v. Hutchins, merely. Scroggin v. National Lumber 53 Tex. 61, 37 Am. Dec. 750, where Co. (Neb., 1894), 59 N. W. Rep. 548; the plea was held defective for want Pope v. Andrews, 90 N. Car. 401. See of certainty. article LEGAL CONCLUSIONS. It should commence, "that the For treatment of the subject of plaintiff ought not to be admitted to pleading the statute of limitations, allege." Page v. Smith, 13 Oregon see article LIMITATIONS, STATUTE OF; 4I3- also post, XIII, 8, /. 1. Spargar v. Romine, 38 Neb. 736; Legal Conclusions. For treatment of Thomas -v. Thomas, 33 Neb. 373; the subject of pleading legal conclu- Montrose v. Wanamaker, 134 N. Y. sions, see article LEGAL CONCLUSIONS. 590; Nave v. Adams, 107 Mo. 419; 3. Carpentier v. Oakland, 30 Cal. Field v. Sims, 96 Ala. 540; McCreary 439; Chipman v. Hastings, 50 Cal. v. Jones, 96 Ala. 592. See Brandt v. 310; Kentfield v. Hayes, 57 Cal. 409 ; Albers, 6 Neb. 504, and Smith v. Miller v. Fulton, 47 Cal. 146; Meador Downey (Ind. App., 1893), 35 N. E. v. Parsons, 19 Cal. 295; Weber v. Rep. 568, where the plea was held in- Marshall, 19 Cal. 447 ; Lestrade v. sufficient. Barth, 19 Cal. 660; Downer v. Smith, A plea of former recovery in eject- 24 Cal. 115; Blum v. Robertson, 24 ment, as to a part of the demanded Cal. 129; Kahn v. Old Tel. Min. Co., premises, should describe the land 2 Utah 175; Garrett v. Love, 89 N. which was in contest in the former Car. 205; Anderson v. Logan, 105 N. action. Anderson v. Fisk, 36 Cal. 626. Car. 266; Rose v. Treadway, 4 Nev. 2. Walker v. Laney, 27 S. Car. 150; 455,97 Am. Dec. 546; Maguire v. Vice, Maple v. Cincinnati R. Co., 40 Ohio 20 Mo. 428; Jones v> Brinker, 20 Mo. St. 313; Turner v. Shuffler, 108 N. Car. 87; Vasquez v. Ewing, 24 Mo. 31, 66 643; Hartson v. Hardin, 40 Cal. 264; Am. Dec. 694; Ells v. Pacific R. Co., McCollister v. Willey, 52 Ind. 382; 51 Mo. 200. Templeton v. Sharp (Ky., 1888), 9 S. The defendant becomes an actor W. Rep. 507; Stiles -v. Smith, 55 Mo. with respect to the matter alleged by 364; McKinzie v. Hill, 51 Mo. 303, n him. Estradas. Murphy, 19 Cal. 249; Am. Rep. 450; Wiggins v. Lovering, Dewey v. Hoag, 15 Barb. (N. Y.) 365. 9 Mo. 262. For treatment of the subject of A plea of the general statute of limi- pleading equitable defenses, see ar- tations is not sufficient when a special ticle EQUITABLE DEFENSES. one is relied on. Howell v. Rogers, 4. Harrison v. Missouri Pac. R. Co., 47 Cal. 291. See Harper v. Eubank, 74 Mo. 364, 41 Am. Rep. 318; Higgins 836 New Matter. A NS WERS IN CODE PLEADING. Whati*. Statute of Frauds. In pleading the defense of the Statute of Frauds it is not sufficient to allege that the matter is barred by the stat- ute ; the facts relied upon as a defense must be set out. 1 8. What Constitutes New Matter #. INTRODUCTORY. The re- quirement contained in the Codes, that an answer must contain a statement of any new matter constituting a defense, is impera- tive. 2 b. EQUITABLE DEFENSES. The Codes having abolished the dis- tinction between actions at law and suits in equity, and between the forms of all such actions, as theretofore existing, an equitable defense to a civil action is now as available as a legal defense. The question now is, ought the plaintiff to recover, and anything which shows that he ought not is available to the defendant, whether it was formerly of equitable or of legal cognizance. But matter constituting an equitable defense is new matter, and must be pleaded. 3 van v. Hannibal, etc., R. Co., 89 Mo. 147; Hudson -v. Wabash Western R. Co., 101 Mo. 13; Keitel v. St. Louis, etc., R. Co., 28 Mo. App. 657; St. Clair -v. Missouri Pac. R. Co., 29 Mo. App. 76. North Carolina. Young v. Greenlee, 82 N. Car. 346. Kentucky. Kentucky Cent. R. Co. v. Thomas, 79 Ky. 160. Nebraska. South Omaha v. Cun- ningham, 31 Neb. 316. Oregon. Grant v. Baker, 12 Oregon v. Missouri Pac. R. Co., 43 Mo. App. 547- For treatment of the subject of pleading contributory negligence, see article CONTRIBUTORY NEGLIGENCE. 1. Dinkel v. Gundelfinger, 35 Mo. 172; Bean v. Valle, 2 Mo. 126. For treatment of the subject of pleading the Statute of Frauds, see ar- ticle FRAUDS, STATUTE OF. 2. New York. Button v. McCauley, 38 Barb. (N. Y.) 413; Hendricks v. Decker, 35 Barb. (N. Y.) 298; Brett v. First Universalist Soc., 63 Barb. (N. Y.) 610; Catlin v. Gunter, I Duer (N. Y.) 253; Eldridge v. Mather, 2 N. Y. 157; Weaver v. Barden, 49 N. Y. 286. Indiana. Frybarger v. Cockefair, 17 Ind. 404; Bingham v. Kimball, 17 Ind. 396; Johnson v. Cuddington, 35 Ind. 43; Brown v. College Corner, etc., Gravel Road Co., 56 Ind. no; Brown v. Freed, 43 Ind. 253; Livesey v. Livesey, 30 Ind. 398; Casade v. Holdridge, 50 Ind. 529. Wisconsin. rScheer v. Keown, 34 Wis. 353; Frisbee v. Langworthy, n Wis. 376; Orton v. Noonan, 25 Wis. 672; McLane v. Bovee, 35 Wis. 27; Lombard v. Cowham, 34 Wis. 486; Dutcher v. Dutcher, 39 Wis. 651. Minnesota. Warner v. Myrick, 16 Minn. 91. Iowa. Dyson v. Ream, 9 Iowa 51; Patterson v. Clark, 20 Iowa 429. California. Glazer v. Clift, 10 Cal. 304- Ohio. Stewart v. Hoag, 12 Ohio St. 623. Missouri. Maybee v. Moore, 90 Mo. 340; Stone v. Hunt, 94 Mo. 475; Dono- United States. Watkinds v. South- ern Pac. Co., 38 Fed. Rep. 711. 3. New York. Dobson v. Pearce, 12 N. Y. 168, 62 Am. Dec. 152; Despard v. Walbridge, 15 N. Y. 374; Morris v. Tuthill, 72 N. Y. 575; Cramer v. Ben- ton, 4 Lans. (N. Y.) 291; Cythe v. La Fontain, 51 Barb. (N. Y.) 186; Hicks v. Sheppard, 4 Lans. (N. Y.) 335; Day v. Hammond, 57 N. Y. 479, 15 Am. Rep. 522; Webster v. Bond, 9 Hun (N. Y.) 437; Mentz v. Cook, 108 N. Y. 504; Baron v. Korn, 51 Hun (N. Y.) 401; Seymour v. McKinstry, 106 N. Y. 230; Wheelock v. Noonan, 108 N. Y. 179, 2 Am. St. Rep. 405; Bell v. Spotts, 40 N. Y. Super. Ct. 552 ; Canaday v. Stiger, 55 N. Y. 452; Hoppough v. Struble, 60 N. Y. 430; Foot v. Sprague, 12 How. Pr, (N. Y. Supreme Ct.) 355; Pratt v. Peckham (Supreme Ct.), 7 N. Y. St. Rep. 621; Burget v. Bissell, 5 How. Pr. (N. Y. Supreme Ct.) 192; Hicksville, etc., R. Co. v. Long Island R. Co., 48 Barb. (N. Y.) 355; Hunt v. Farmers' Loan, etc., Co., 8 How. Pr. (N. Y. Supreme Ct.) 416; Hinman v. 837 New Matter. ANSWERS IN CODE PLEADING. What is. c. MATTER IN ABATEMENT. Technical pleas in abatement are abolished, but those defenses which were formerly so pleaded are Judson, 13 Barb. (N. Y.) 629; Kay v. Whittaker, 44 N. Y. 565; Garner v. Hannah, 6 Duer (N. Y.) 262; Giles v. Austin, 62 N. Y. 486. Texas. Cannon v. Hemphill, 7 Tex. 184; Egery v. Power, 5 Tex. 501; Wal- cott v. Hendrick, 6 Tex. 406; Castro v. Gentiley, u Tex. 28. North Carolina. Bean v. Western North Carolina R. Co., 107 N. Car. 731- Ohio. Stewart v. Hoag, 12 Ohio St. 623. Missouri. Jones v. Shaw, 67 Mo. 667. Minnesota. Gates v. Smith, 2 Minn. 30; McClave v. White, 5 Minn. 178. Iowa. Kelsey v. Kelsey, 57 Iowa 383- California. Terry v. Sickles, 13 Cal. 427; Brodrib v. Brodrib, 56 Cal. 563; Hopkins v. Beard, 6 Cal. 664; Manly v. Howlett, 55 Cal. 94; Hartley v. Brown, 46 Cal. 202; Marks v. Say- ward, 50 Cal. 57; McCauley v. Fulton, 44 Cal. 356; Sneed v. Osborn, 25 Cal. 630; Seaton v. Son, 32 Cal. 481; Cross v. Sacramento Sav. Bank, 66 Cal. 462; Barfield v. Price, 40 Cal. 535; Wright v. Shatter, 48 Cal. 275; Ross v. Heint- zen, 36 Cal. 318; Kenyon v. Quinn, 41 Cal. 326; Gates v. Salmon, 46 Cal. 363; Stokes v. Stevens, 40 Cal. 391; Pierson v. McCahill, 21 Cal. 123. Action at Law. An equitable de- fense may be made to an action at law. Equitable Assur. Soc. v. Cuyler, 75 N. Y. 511; Pitcher v. Hennessey, 48 N. Y. 415; Cavalli v. Allen, 57 N. Y. 508; Hook v. Craighead, 32 Mo. 405; Leitensdorfer v. Delphy, 15 Mo. 160, 55 Am. Dec. 137; Rose v. Will- iams, 5 Kan. 483; Rogers v. Gwinn, 21 Iowa 58; Wa Ching v. Constantine, I Idaho 266; Salsbury v. Ellison, 7 Colo. 167, 49 Am. Rep. 347. Thus fraud may be set up as an equitable defense to an action upon a judgment of ejectment. See Rogers v. Gwinn, 21 Iowa 58. An equitable defense may be set up to an action of ejectment. Dobson v. Pearce, 12 N. Y. 163, 12 Am. Dec. 152; Cythe v. La Fontain, 51 Barb. (N. Y.) 186; Smith v. Athern, 34 Cal. 512; King v. Meyer, 35 Cal. 646; Love v. Watkins, 40 Cal. 548, 6 Am. Rep. 624; Gerdes v. Moody, 41 Cal. 336; Mar- shall v. Caldwell, 41 Cal. 6n; Bruck v. Tucker, 42 Cal. 346; Montgomery v. Spect, 55 Cal. 352; Boyd v. Brinckin, 55 Cal. 427; Wormouth v. Johnson, 58 Cal. 621; Whittier v. Stege, 61 Cal. 239; Hayden v. Stewart, 27 Mo. 286; Chouteau v. Gibson, 76 Mo. 38; Reece v. Roush, 2 Mont. 586; Johnson v. McArthur, 64 N. Car. 675. Thus, a mere equitable title to land, if of such a character as in equity entitles the holder to possession, Is a sufficient de- fense to an action of ejectment. Willis v. Wozencraft, 22 Cal. 608; Morrison v. Wilson, 13 Cal. 495, 73 Am. Dec. 593; Travers v. Crane, 15 Cal. 12; De Rutte v. Muldrow, 16 Cal. 505; Cadiz v. Majors, 33 Cal. 289 ; Talbert v. Singleton, 42 Cal. 391 ; Guedici v. Boots, 42 Cal. 452; Murray v. Dake, 46 Cal. 645; Walker v. Breen 67 Cal. 599; Scott v. Sierra Lumber Co., 67 Cal. 71; Haggin v. Raymond, 67 Cal. 302; De Arguello v. Bours, 67 Cal. 447; Central Pac. R. Co. v. Mudd, 59 Cal. 585; Rosiery v. Van Dam, 16 Iowa 175; Van Orman v. Spafford, 16 Iowa 186; Kramer v. Conger, 16 Iowa 434; Shawhan v. Long, 26 Iowa 488, 96 Am. Dec. 164; Tibeau v. Tibeau, 19 Mo. 78, 59 Am. Dec. 329 ; Crary v. Goodman, 12 N. Y. 266, 64 Am. Dec. 506; Bartlett v. Judd, 21 N. Y. 200, 78 Am. Dec. 131. The defendant may set up as a de- fense the part performance of a verbal contract for the sale of the land by plaintiff to defendant. Arguello v. Edinger, 10 Cal. 150. In an action of ejectment an equi- table defense is not available under an answer denying that the plaintiff is the owner and that he is entitled to the possession. Anderson v. Logan, 105 N. Car. 266; Hinton v. Pritchard, 102 N. Car. 94; Bodenhamer v. Welch, 89 N. Car. 78. And where a legal title is relied on by defendant he cannol use an equi- table defense. Kennedy v. Daniels, 20 Mo. 104. It seems that, in an action of eject- ment, if the defendant relies on the fact that the land is partnership prop- erty, he must assert his rights in equity in a different action. Lowe v. Alex- ander, 15 Cal. 297. Equitable Defenses are to be Distin- guished from Counterclaims. A cause of action in equity which wholly de- 838 New Matter. ANSWERS IN CODE PLEADING. What is. now pleadable in the answer ; there is no distinction between mat- ter in abatement and matter in bar. All matter in abatement is new matter and must be specially pleaded. 1 feats the demand of the plaintiff is an equitable defense. Jones v. Moore, 42 Mo. 419. Thus, in case of an assignment of a thing in action, if a set-off is pleaded it cannot be pleaded as a counterclaim, but must be set up as an equitable de- fense. Duff v. Hobbs, 19 Cal. 659. But it has been held that the right to have a mortgage reformed is a counterclaim. Follett v. Heath, 15 Wis. 601. But see Andrews v. Gilles- pie, 47 N. Y. 487 ; Hoppough v. Struble, 2 Thomp. & C. (N. Y.) 664; Miners' Ditch Co. v. Zellerbach, 37 Cal. 608, 99 Am. Dec. 30; Thayer v. White, 3 Cal. 228. Waiving Equitable Defense. Al- though a party may set up an equita- ble defense to an action at law, he is not confined to that proceeding. He may let the judgment go at law, and file his bill in equity for relief. Lor- raine v. Long, 6 Cal. 452; Witte v, Lockwood, 39 Ohio St. 146; Spaur v. McBee, 19 Oregon 79. Contra, Hack- ett v. Schad, 3 Bush (Ky.) 353; Utah, etc., R. Co. v. Crawford, i Idaho 771. See also Lupo v. True, 16 S. Car. 580; Smith v. Bryce, 17 S. Car. 539; Penny v. Cook, 19 Iowa 538; Thompson v. Hurley, 19 Iowa 331; Gaster v. Waggoner, 26 Ohio St. 450; Clark v. Clark, 65 N. Car. 655; White v. Allen, 3 Oregon 104. 1. California. White v. Adams, 52 Cal. 435; Walsworth v. Johnson, 41 Cal. 61; Rowe ^.Chandler, i Cal. 171; Tooms v. Randall, 3 Cal. 438; Fairbanks v. Woodhouse, 6 Cal. 434; Small v. Gwinn, 6 Cal. 447; Whitney v. Stark, 8 Cal. 514. 68 Am. Dec. 360; Califor- nia Steam Nav. Co. v. Wright, 8 Cal. 585; Hentsch v. Porter, 10 Cal. 555; People v. Rains, 23 Cal. 131; Gillam v. Sigman, 29 Cal. 638; Welsh v. Kirk- patrick, 30 Cal. 203; People v. Steamer America, 34 Cal. 676; Hastings v. Stark, 36 Cal. 123; Walsworth v. Johnson, 41 Cal. 61; Amador Canal, etc., Co. v. Mitchell, 59 Cal. 169; Rutenberg z p . Main, 47 Cal. 213; Trenor v. Central Pac. R. Co., 50 Ca!. 223; Morenhunt v. Wilson, 52 Cal. 263; McCreery v. Everding, 54 Cal. 168; Goodline v. King, 55 Cal. 377; Dis- trict No. no v. Feck, 60 Cal. 403; Sweeney v. Stanford, 67 Cal. 635. New York. Gardner v, Clark, 21 N. Y. 399; Sweet v. Tuttle, 14 N. Y. 467; Mayhew v. Robinson, 10 How. Pr. (N. Y. Supreme Ct) 163; Barclay v. Quicksilver Min. Co., 6 Lans. (N. Y.) 25; Burnside v. Matthews, 54 N. Y. 78; Phoenix Bank v. Donnell, 40 N. Y. 411; Hammond v. Earle, 58 How. Pr. (N. Y. Supreme Ct.) 427; Styles v. Fuller, 101 N. Y. 622; White v. Miller, 7 Hun (N. Y.) 429; Dawley v. Brown, 9 Hun (N. Y.), 461; Smith v. Hall, 67 N. Y. 48; Wright v. Wright, 54 N. Y. 442; Jackson v. Whedon, i E. D. Smith (N. Y.) 141; Savage v. Corn Exch., etc., Nav. Ins. Co., 4 Bosw. (N. Y.) 2. Missouri. Goetz v. Ambs, 27 Mo. 28; Bernecker v. Miller, 44 Mo. 102; Arthur v. Richards, 48 Mo. 298; Ran- dolph v. Hannibal, etc., R. Co., 18 Mo. App. 609; Giraldin v. Howard, 103 Mo. 41. Nevada. Mandlebaum v. Russell, 4 Nev. 551. Oregon. Kennard v. Sax, 3 Oregon 263. Utah. Jungk v. Reed, 9 Utah 49. lo-wa. Van* Metre v. Wolf, 27 Iowa 341- Colorado. Watson v. Lemen, 9 Colo. 200. Montana. Higgins v. Germaine, I Mont. 235. North Carolina. Charlotte Bank v. Britton, 66 N. Car. 365; Hawkins v. Hughes, 87 N. Car. 115, cited in 104 N. Car. 161; Silver Valley Min. Co, v. Baltimore Co., 99 N. Car. 444; Usry v. Suit, 91 N. Car. 406. Ohio. Weil v. Guerin, 42 Ohio St. 299; Sargent v. Steubenville, etc., R. Co., 32 Ohio St. 449; Smith v. Weed Sewing Mach. Co., 26 Ohio St. 565. . Wisconsin. Dutcher v. Dutcher, 39 Wis. 652; Collette v. Weed, 68 Wis. 428; Jones v. Foster, 67 Wis. 296; Plath v. Braunsdorff, 40 Wis. 107; Smith v. Peckham, 39 Wis. 415; New- hall House Stock Co. v. Flint, etc., R. Co., 47 Wis. 516. Indiana. Garrison v. Clark, n Ind. 369; Norris v. Scott, 6 Ind. App. 18; Midland R. Co. v. Stevenson, 6 Ind. App. 207; McDaniel v. Carver, 40 Ind. 250; Elson v. O'Dowd, 40 Ind. 300; Landers v. Douglas, 46 Ind. 522; Wagner v. Ewing, 44 Ind. 441; John- 839 New Matter. ANSWERS IN CODE P LEADING. What is. d. PARTIAL DEFENSES. Those provisions of the Codes which require a statement of any new matter, constituting a defense, to be set up in the answer, should be so construed as to require the defendant, in all cases, to plead any new matter constituting either an entire or a partial defense, and to prohibit him from giving such matter in evidence upon the assessment of damages when not set up in the answer. 1 How Partial Defenses Should Be Pleaded. Facts relied on as a partial defense must be pleaded as such, and not by way of full defense. 3 son v. Miller, 47 Ind. 377; 17 Am. Rep. 699; Wade v. State, 37 Ind. 181; Curtis v. Gooding, 99 Ind. 45; Beatty v. Bar- tholomew, 76 Ind. 91. Nebraska. Maurer v. Miday, 25 Neb. 575; National L. Ins. Co. v. Robinson, 8 Neb. 452; Zunkle v. Cun- ningham, 10 Neb. 162; Dietrichs v. Lincoln, etc., R. Co., 13 Neb. 43; Herron v. Cole, 25 Neb. 692; Hall v. Strode, 19 Neb. 658. The judgment on matter in abate- ment is that the action be dismissed, instead of that the suit abate. Stone v. Powell, 13 B. Mon. (Ky.) 341. As to what constitutes matter in abatement, see article ABATEMENT IN PLEADING. 1. McKyring v. Bull, 16 N. Y. 309, 69 Am. Dec. 696, a leading case, where the defendant was held precluded from proving payment, in whole or in part, under a general denial; Allen v. Haskins, 5 Duer (N. Y.) 332; Kneedler v. Sternburgh, 10 How. Pr. (N. Y. Su- preme Ct. ) 67 ; Loosey v. Orser , 4 Bos w. (N. Y.) 391 Longworthy v. Knapp, 4 Abb. Pr. (N. Y. Supreme Ct.) 115; Gleason v. Moen, 2 Duer (N. Y.) 639; Van de Sande v. Hall, 13 How. Pr. (N. Y. Supreme Ct.) 458; Willis v. Tag- gard, 6 How. Pr. (N. Y. Supreme Ct.) 433 Bush v. Prosser, 11 N Y. 347; Smith v. Shufelt, 3 Code Rep. (N. Y.) 175; Tracy v. Humphrey, 3 Code Rep. (N. Y.) 190; Grosvenor v. Atlan- tic F. Ins Co., i Bosw. (N. Y.) 469; Morrell v. Irving F. Ins. Co., 33 N. Y. 429, 88 Am. Dec. 396; Foland v. John- son, 16 Abb. Pr. (N. Y. Supreme Ct.) 235; Peebles v. Isaminger, 18 Ohio St. 490; Higgins v. Germaine, I Mont. 235; Atchison, etc., R. Co. v. Wash- burn, 5 Neb. 117; Burlington, etc., R. Co. v. Lancaster County, 7 Neb. 33; Jones v. Seward County, 10 Neb. 161; Phoenix Ins. Co. v. Barnd, 16 Neb. 89; Mordhorst v. Nebraska Tel. Co., 28 Neb. 610; Bishop v. Stevens, 31 Neb. 786; Prall v. Peters, 32 Neb. 832. Contra. A partial defense is bad, and admits the allegations of the com- plaint. Jones v. Frost, 51 Ind. 69; Conger v. Parker, 29 Ind. 380; Lock- wood v. Woods, 3 Ind. App. 258; Tay- lor v. Calvert (Ind., 1894), 37 N. E. Rep. 531; Smith v. Dick, 95 Ala. 311. The fact that the same allegation which forms the basis of a partial de- fense is embodied in the complaint does not take it from its character of new matter, within the meaning of the Code of Civil Procedure, where it is extraneous to the basis of the relief asked, and where, consequently, its re- cital does preclude its use as a basis of defense. Petrakion v. Arbelly, 23 Civ. Pro. Rep. (N. Y. C. PI.) 184, 187. Part Payment must be specially pleaded. McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696; Houghton v. Townsend, 8 How. Pr. (N. Y. Su- preme Ct.)44i; Grosvenor v. Atlantic F. Ins. Co., i Bosw. (N. Y.)4&9. But a Partial Failure of Consideration need not be specially pleaded. Car- penter v. Meyers, 32 Mo. 213; Voss v. McGuire, 18 Mo. App. 477; Mercer v. Hall, 2 Tex. 284; Willis v. Bullitt, 22 Tex. 330; Brantly v. Thomas, 22 Tex. 270, 77 Am. Rep. 264. But see Hack- ett v. Schad, 3 Bush (Ky.) 353. In an Action for the Conversion of a Note the fact that the statute had barred action on the note is a partial defense, as it tends to reduce dam- ages. Thompson v. Halbert (Su- preme Ct.), 2 N. Y. St. Rep. 116. See also Willis v. Taggard, 6 How. Pr. (N Y. Supreme Ct.)433; Wehle v. Butler, 43 How. Pr. (N. Y. Super. Ct.) 5; Wehle -v. Haviland, 42 How. Pr. (N. Y. C. PI.) 399- 2. Ronan v. Williams, 41 Iowa 680. But it is no objection to an answer that it begins in form as a full de- Matter. ANSWERS IN CODE PLEADING. What is. e. MITIGATING CIRCUMSTANCES. While a partial defense must be pleaded, mere matters in mitigation of damages need not be. They are admissible under a general denial. 1 fense, but concludes with averments making it only a partial defense. Ben- nett v. Matthews, 64 Barb. (N. Y.) 410. But if it clearly appears on the face of the answer to be only a partial de- fense, there is no necessity to use the words "partial defense." Howd v. Cole, 74 Hun (N. Y.) 121. The allegations must be so certain and specific as that, if admitted, the court could give judgment in the case. Thompson v. Munger, 15 Tex. 523, 65 Am. Dec. 176; Davison v. Schermer- horn, I Barb. (N. Y.) 480; Mattison v. Smith, I Robt. (N. Y.) 706. 1. Ohio. Duval v. Davey, 32 Ohio St. 604; Vanderveer v. Sutphin, 5 Ohio St. 294 ; Reynolds v. Tucker, 6 Ohio St. 517, 67 Am. Dec. 353; White v. Thomas, 12 Ohio St. 312; Barholt v. Wright, 45 Ohio St. 181, 4 Am. St. Rep. 535- Iowa. Beardsley v. Bridgman, 17 Iowa 290. Indiana. Allis v. Nanson, 41 Ind. 154; Blickenstaff v. Perrin, 27 Ind. 527; O'Conner v. O'Conner, 27 Ind. 69; Smith v. Rodecap, 5 Ind. App. 78. Kentucky. Thurman v. Virgin, 18 B. Mon. (Ky.) 785; Hart v. Reed, i B. Mon. (Ky.) 170, 35 Am. Dec. 179. Missouri. Weaver v. Hendrick, 30 Mo. 502. New York. Kniffin v. McConnell, 30 N. Y. 285; Saltus v. Kipp, 5 Duer (N. Y.) 646; Kneedler v. Sternbergh, 10 How. Pr. (N. Y. Supreme Ct.) 69; Dunlap v. Snyder, 17 Barb. (N. Y.) 561; Travis v. Barger, 24 Barb. (N. Y.)6i4; Harter v. Crill, 33 Barb. (N. Y.)283;Tompkins v. Wadley, 3Thomp. & C. (N. Y.)424; Anonymous, 8 How. Pr. (N. Y. Supreme Ct.) 434; Gilbert v. Rounds, 14 How. Pr. (N. Y. Supreme Ct.) 46; Lane v. Gilbert, 9 How. Pr. (N. Y. Supreme Ct.) 150. Option of Pleader. But it is optional, especially in slander and libel cases, to plead mitigating circumstances. Van Ingen v. Newton, i Disney (Ohio) 458; Beckett v. Lawrence, 7 Abb. Pr. N. S. (N. Y. Supreme Ct.) 403; Knott v. Burwell, 96 N. Car. 272; Kimball v. Fernandez, 41 Wis. 329 ; Jauch v. Jauch, 50 Ind. 135, 19 Am. Rep. 699; Swinney v. Nave, 22 Ind. 179; Smith -. Lisher, 23 Ind. 501. 84 But some authorities hold that in slander and libel cases mitigating cir- cumstances must be pleaded. Anony- mous, 6 How. Pr. (N. Y. Supreme Ct.) 160; Willover v. Hill, 72 N. Y. 37; Fero v. Ruscol, 4 N. Y. 162; Spooner v. Keeler, 51 N. Y. 527; Wachter v. Quenzer, 29 N. Y. 547; Thompson v. Taylor, 72 N. Y. 32; Hamilton v. Eno, 81 N. Y. 116; Stiles v. Comstock, 9 How. Pr. (N. Y. Supreme Ct.) 48; Buckley v. Knapp, 48 Mo. 158; Quinn v. Scott, 22 Minn. 456; Langton v. Hagerty, 35 Wis. 151 ; Wilson v. Noonan, 35 Wis. 322. See article LIBEL AND SLANDER. The mitigating circumstances which must be pleaded are those which tend to disprove malice and to reduce puni- tive or exemplary damages. Matters which tend to show the actual dam- ages are not mitigating circumstances, but are admissible under a general denial. Wandell v. Edwards, 25 Hun (N. Y.) 498. Compare the following cases: Poland v. Johnson, 16 Abb. Pr. (N. Y. Supreme Ct.) 235; Hynds v. Griswold, 4 How. Pr. (N. Y. Supreme Ct.) 69; Williams v. Hayes, 5 How. Pr. (N. Y. Supreme Ct.) 470; Bush v. Prosser, n N. Y. 347; Graham z/. Stone, 6 How. Pr. (N. Y. Supreme Ct.) 15 ; Heaton v. Wright, 10 How. Pr. (N. Y. Supreme Ct.) 79; Loosey v. Orser, 4 Bosw. (N. Y.) 391; Houghton v. Townsend, 8 How. Pr. (N. Y. Su- preme Ct.) 441; Jeffras v. McKillop. etc., Co., 2 Hun (N. Y.) 351; Distin v. Rose, 69 N. Y. 123; Coe v. Griggs. 76 Mo. 619; Hawkins v. Globe Printing Co., 10 Mo. App. 174; Buckley v. Knapp, 48 Mo. 152. Facts as Complete Defense. Facts which might be considered by way of mitigation of damages cannot be con- sidered if pleaded as a complete de- fense when they do not constitute a defense. Ronan v. Williams, 41 Iowa 680; Foster v. Hazen, 12 Barb. (N. Y.) 547; Beach v. Barons, 13 Barb. (N. Y.) 305; Thumb v. Walrath, 6 How. Pr. (N. Y. Supreme Ct.) 196; Nichols v. Dusenbury, 2 N. Y. 283 ; Hager v. Tibbits, 2' Abb. Pr. N. S. (N. Y. Su- preme Ct.) 97; Brander v. Faulkner, 93 N. Y. 515; Bennett v. Matthews, 64 Barb. (N. Y.)4io. Pleading Hypothetically. A partial New Matter. ANSWERS IN CODE PLEADING. What is. f. PAYMENT. The defendant cannot avail himself of the defense of payment without pleading it; and when pleaded, if there be no reply, there can be no trial, for want of an issue. 1 defense cannot be pleaded hypotheti- cally. Martin v. Swearengen, 17 Iowa 346. A Demurrer lies for a partial defense defectively stated. Davenport Gas Light, etc., Co. v. Davenport, 15 Iowa 6; Peck v. Parchen, 52 Iowa 46. Contract to Convey Land. Where the plea sets up a partial failure of a con- tract to convey land, it should specify the part to which title has failed, and its proportional value. Stillman v. Canales, 39 Tex. 406. An Answer in Ejectment disclaiming title to a portion of the premises should particularly describe the part disclaimed. Anderson v. Fisk,36 Cal. 625. See also Fortson v. Caldwell, 17 Tex. 627 ; Cumings v. Lawrence County. I S. Dak. 158. 1. Indiana. Hubler v. Pullen, 9 Ind. 273, 68 Am. Dec. 620; Baker v. Kistler, 13 Ind. 63; Johnson v. Tyler, I Ind. App. 387. Texas. Marleyz'. McAnelly, 17 Tex. 658; Robson v. Watts, n Tex. 764; Pettigrew z/. Dix, 33 Tex. 277; Matossy v. Frosh, 9 Tex. 610. Kansas. Sewing Mach. Co. v. Red- field, 18 Kan. 555; Stevens v. Thomp- son, 5 Kan. 305; Clark v. Spencer, 14 Kan. 408, 19 Am. Rep. 96; Irwin v. Paulett, i Kan. 418; St. Louis, etc., R. Co. v. Grove, 39 Kan. 731. Nebraska. Clark v. Mullen, 16 Neb. 481; Magenan v. Bell, 14 Neb. 8; Van Buskirk v. Chandler, 18 Neb. 584; Tootle v. Maben, 21 Neb. 620; Lamb v. Thompson, 31 Neb. 448. Wisconsin. Knapp v. Runals, 37 Wis. 135; Martin v. Pugh, 23 Wis. 184. Hawes v. Woolcock, 30 Wis. 213. Colorado. Esbensen v. Hover, 3 Colo. App. 467. Oregon. Clark v. Wick (Oregon, 1894), 36 Pac. Rep. 165; Benicia Agri- cultural Works v. Creighton, 21 Ore- gon 495. South Carolina. McElwee v. Hutch- inson, 10 S. Car. 436. Montana. Higgins v. Germaine, I Mont. 235. Nortk Carolina. Ellison v. Rix, 85 N. Car. 77. Ohio. Fewster v. Goddard, 25 Ohio St. 276; Swensen v. Cresop, 28 Ohio St. 668; Edwards v. Edwards, 24 Ohio St. 403- 84 Missouri. Hyde v. Hazel, 43 Mo. App. 668; Wilkerson v. Farnham, 82 Mo. 672; Smith v. Rembaugh, 21 Mo. App. 390; Albersz/. Commercial Bank, 85 Mo. 173, 55 Am. Rep. 355; German Bank v. Mulhall, 8 Mo. App. 558; Minor v. Rogers Coal Co., 25 Mo. App. 78. New York. Seward v. Torrence, 5 Thomp. & C. (N. Y.) 323; Edson v. Dillaye, 8 How. Pr. (N. Y. Supreme Ct.) 273; Everett v. Lockwood, 8 Hun (N. Y.) 356; Dry Dock, etc., Co. v. North & East River R. Co. (C. PL), 22 N. Y. Supp. 556; Hall v. Olney, 65 Barb. (N. Y.) 27; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696; Wilcox v. Joslin (Supreme Ct.), 10 N. Y. Supp. 342; Potter v. Gates (Supreme Ct.), 29 N. Y. St. Rep. 662; Bassett v. Lederer, I Hun (N. Y.) 274; Calkins v. Packer, 21 Barb. (N. Y.) 275; Texier v. Gouin, 5 Duer (N. Y. 389. Evidence of payment, or of applica- tion of the fund in suit to plaintiff's benefit, cannot be introduced under a general denial. W T ehle v. Butler, 12 Abb. Pr. N. S. (N. Y. Super. Ct.) 139- Under a plea of payment, in a suit on an account, the objection cannot be made that the goods, for the price of which the suit is brought, were wrongfully obtained, and are therefore not properly the subject-matter of an account. Smith v. W T eed Sewing Mach. Co., 26 Ohio St. 562. In an action upon an alleged indebt- edness an allegation in the complaint of nonpayment is essential. This is not affected by the rule that payment must be pleaded as an affirmative defense, and cannot be proved under the general issue; but the rule simply modifies the general rule of pleading so that the averment of payment is not put in issue by a general denial. Lent v. New York, etc., R. Co., 130 N. Y. 504; Hubler v. Pullen, 9 Ind. 273, 68 Am. Dec. 620; Wheeler, etc., Mfg. Co. -v. Worrall, 80 Ind. 297; Friddle v. Crane, 68 Ind. 583; Downey v. Whittenberger, 60 Ind. 188; Deutsch v. Korsmeier, 59 Ind. 373; Kent v. Cantrall, 44 Ind. 452; Higert v. Trus- tees, 53 Ind. 326. A Release ol a Covenantor on his war- ranty, by payment made by his grant- New Matter. ANS WERS IN CODE PLEADING. What is. g. RES JUDICATA. Where a former judgment is relied on as an estoppel in another action, it must be pleaded. 1 h. ESTOPPEL IN PAIS. An estoppel in pais, to be relied on as a defense, should be pleaded. 2 ees, is new matter. Pierce v. Early, 79 Iowa 199, 203. Foreclosure Suit. But in an action to foreclose a mortgage the partial pay- ments need not be pleaded. Hendrix v. Gore, 8 Oregon 407. 1. Nebraska. Gregory v. Kenyon, 34 Neb. 641; Allen v. Saunders, 6 Neb. 441; Kilpatrick v. Kansas City, etc., R. Co., 38 Neb. 620. Montana. Josephi v. Mady Clothing Co. (Mont., 1893), 33 Pac. Rep. i. Florida. State v. Anderson, 26 Fla. 240. Indiana. First Nat. Bank v. Wil- liams, 126 Ind. 423; Norris v. Amos, 15 Ind. 365. Missouri. Campbell v. Kansas City, 102 Mo. 326; Greenbaum v. Elliott, 60 Mo. 25; Kelly v. Hurt, 61 Mo. 463; State v. Brooke, 29 Mo. App. '286; Field v. Sanderson, 34 Mo. 542, 86 Am. Dec. 124; Edgell v. Sigerson, 20 Mo. 494; Glenn v. Priest, 48 Fed. Rep. 19; Nave -v. Adams, 107 Mo. 414. Oregon. Bays v. Trulson (Oregon, 1893). 35 P ac - Rep. 26. North Carolina. Blackwell v. Dib- brell, 103 N. Car. 270; Harrison v. Hoff, 102 N. Car. 126. Ohio. Fanning v. Hibernia Ins. Co., 37 Ohio 344; Meiss v. Gill, 44 Ohio St. 253- New York. Mandeville v. A very, 63 Hun (N. Y.) 624; Dalrymple v. Hunt, 5 Hun (N. Y.) in; Hendricks v. Decker, 35 Barb. (N. Y.) 298. California. Cave v. Crafts, 53 Cal. 135; Piercy v. Sabin, 10 Cal. 22. 70 Am. Dec. 692; Hostlers. Hays, 3 Cal. 303; Flandreau v. Downey, 23 Cal. 354; Davis v. Perley, 30 Cal. 631; Semple v. Wright, 32 Cal. 659; Blood v. Mar- cuse, 38 Cal. 590, 99 Am. Dec. 435; San Francisco v. Spring Valley Water Works Co., 39 Cal. 475. Contra, Larum v. Wilmer, 35 Iowa 244. When there has been no opportunity to plead the judgment, it may be relied on as evidence. Wilkes v. Davies, 8 Wash. 112. See Terry v. Munger, 49 Hun (N. Y.) 560, where a record of a former recovery was admitted as a pro- bative fact, under a general denial, in an action for conversion, for the pur- pose of disproving a conversion. Where the only answer pleaded to the cause of action stated in one para- graph of the complaint is a general denial, evidence of a former recovery under a plea addressed to another paragraph is not available. Louisville, etc., R. Co. v. Cauley, 119 Ind. 142. A prior recovery is not available as a defense unless pleaded in bar, though it may be alleged in the answer. Bry- son v. St. Helen, 79 Hun (N. Y.) 167; Norton v. Norton (Ky., 1894), 25 S. W. Rep. 750. The invalidity of a judgment is new matter. Hobbs v. Duff, 43 Cal. 485. As, for instance, that it has been vacated by order of court. Carpenter v. Goodwin, 4 Daly (N. Y.) 89. Where a garnishee interposes a judgment in favor of the assignor as a defense to an action by the assignee of the chose, this is new matter. Walters v. Washington Ins. Co., r Iowa 404, 63 Am. Dec. 451. When the plea of res judicata oper- ates to deny the equities of the com- plaint, it is not new matter. Breeze v. Haley., u Colo. 351. Waiver. Counsel may by stipula- tion waive the pleading of res judicata. David Bradley Mfg. Co. v. Eagle Mfg. Co., 58 Fed. Rep. 721; Reich v. Coch- ran, 74 Hun (N. Y.) 551. 2. Oregon. Rugh ?'. Ottenheimer, 6 Oregon 232, 25 Am. Rep. 513; Remil- lard v. Prescott, 8 Oregon 38; Bruce v. Phoenix Ins. Co., 24 Oregon 486. Nevada. Hanson v. Chiatiovich, 13 Nev. 395. Utah. Poynter v. Chipman, 8 Utah 442. Iowa. Independent Dist. v. Mer- chants' Nat. Bank, 68 Iowa 343. Colorado. De Votie v. McGerr, 15 Colo. 467; Gaynor v. Clements, 16 Colo. 209. Nebraska. Burlington, etc., R. Co. v. Harris, 8 Neb. 140. Indiana. Wood v. Ostram, 29 Ind. 179; Anderson v. Hubble, 93 Ind. 570, 47 Am. Rep. 394. Wisconsin. Warder v. Baldwin, 51 Wis. 451; McKesson v. Sherman, 51 Wis. 305; Van Trott v. Wiese, 36 Wis. 439. California. Clarke v. Huber, 2$ 843 New Matter. ANSWERS IN CODE PLEADING. What is. i. FRAUD. Fraud is new matter, and when intended to be used as a defense it must be pleaded. 1 y. ILLEGALITY OF CONTRACT. A defendant, in order to avail himself of facts not appearing on the face of a contract to estab- lish its invalidity, must plead them. 2 Cal. 597; Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157; Martina. Zellerbach, 38 Cal. 311, 99 Am. Dec. 365; Etche- borne v. Auzerais, 45 Cal. 121. Washington. Walker v. Baxter, 6 Wash. 244. Texas. Rail v. City Nat. Bank, 3 Tex. Civ. App. 557. Missouri. Central Nat. Bank v. Doran, 109 Mo. 40; Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Miller v. Anderson, 19 Mo. App. 71; Hammerslough v. Cheatham, 84 Mo. 13; Stones v. Richmond, 21 Mo. App. 17; Weise v. Moore, 22 Mo. App. 53. Kansas. Dwelling House Ins. Co. v. Johnson, 47 Kan. i. Contra. Hostler v. Hays, 3 Cal. 303; Churchill v. Baumann, 95 Cal. 541; Stanley v. Green, 12 Cal. 148; Cald- well v. Auger, 4 Minn. 217, 77 Am. Dec. 515; Guest v. Guest, 74 Tex. 664. The estoppel must be pleaded even though the proceeding is an equitable one. Central Nat. Bank v. Doran, 109 Mo. 40. An estoppel by election to take under a will is new matter. Noe v. Splivalo, 54 Cal. 207; Etcheborne v. Auzerais, 45 Cal. 121; McCarty v. Rob- erts, 8 Ind. 150. Where there is no opportunity to plead the estoppel in pais, it is avail- able in evidence. Tyler v. Hall, 106 Mo. 313; Bank v. Pomeroy Flour Co., 41 Ohio St. 559. See Pennsylvania Co. v. Platt, 47 Ohio St. 366. 1. Colorado. Tucker v. Parks, 7 Colo. 63. Indiana. Rose v. Hurley, 39 Ind. 78; Jenkins v. Long, 19 Ind. 28, 81 Am. Dec. 374; Farmer v. Calvert, 44 Ind. 209. Oregon. Hoyt v. Clarkson, 23 Ore- gon 51; Fleischner v. Kubli, 20 Oregon 328. Minnesota. Daly v. Proetz, 20 Minn. 411. Iowa. Root v. Schaffner, 39 Iowa 375; Moore v. Moore, 39 Iowa 461. Wisconsin. Cayon v. Dwelling House Ins. Co., 68 Wis. 510. Texas. Hoffman v. Cleburne Bldg., etc., Assoc.. 2 Tex. Civ. App. 688; Wil- lis v. Hudson, 63 Tex. 678. California. California Steam Nav. Co. v. Wright, 8 Cal. 585; Terry v. Sickles, 13 Cal. 427; Churchill v. Anderson, 56 Cal. 55; McKiernan v. Leuzen, 56 Cal. 61; McCreary v. Marston, 56 Cal. 403; Brodrib v. Brod- rib, 56 Cal. 563; Hayward v. Rogers, 62 Cal. 348. New York. Richtmeyer v. Remsen, 38 N. Y. 206; Lefler v. Field, 50 Barb. (N. Y.)407; Dalrymple v. Hillenbrand, 62 N. Y. 5, 20 Am. Dec. 438; Klinger v. Bondy, 36 Hun (N. Y.)6oi. In an action to rescind a contract on the ground of fraud, the defense of a former judgment for the fraud is new matter. Dalrymple v. Hunt, 5 Hun (N. Y.) in. In a suit for breach of promise the fact that defendant's promise of mar- riage was obtained by plaintiff fraudu- lently must be pleaded. Leavitt v. Cutler, 37 Wis. 46. If a deed is "voidable by reason of fraud, this is new matter; otherwise, if void. Lombard v. Cowham, 34 Wis. 486. The defense that the contract sued on was made in fraud of creditors is new matter. Carter v. Shotwell, 42 Mo. App. 663. See Claflin v. Sommers, 39 Mo. App. 419; Pond v. Davenport, 45 Cal. 225. Replevin. The rule which requires fraud to be specially pleaded does not apply to the action of replevin. Sopris v. Truax, i Colo. 89. Contra, Frisbee v. Langworthy, n Wis. 375. 2. New York. Milbank v. Jones, 127 N. Y. 370, 24 Am. St. Rep. 454; Dingel- dein v. Third Ave. R. Co., 37 N. Y. 575; Goodwin v. Massachusetts Mut. L. Ins. Co., 73 N. Y. 480; May v. Burras, 13 Abb. N. Cas. (N. Y. City Ct.) 384; Hayvvood v. Jones, 10 Hun (N. Y.) 500; Schreyer v. New York, 39 N. Y. Super. Ct. i; Vischer v. Bagg, 21 N. Y. Wkly. Dig. 399; Honegger v. Wettstein, 94 N. Y. 252; O'Toole v. Garvin, 3 Thomp. & C. (N. Y.)ii9. Oregon. Buchtel v. Evans, 21 Ore- 844 New Matter. ANSWERS IN CODE PLEADING. What is- k. JUSTIFICATION. Matters in justification of an act which, would otherwise be unlawful must be specially pleaded. 1 gon 309; Jameson v. Coldwell, 25 Oregon 144, 31 Pac. Rep. 299. Washington. Lyts v. Keevey, 5 Wash. 606. Ohio. Mathews v. Leaman, 24 Ohio St. 615. Minnesota. Nash v. St. Paul, n Minn. 174; Desnoyer v. L'Hereaux, I Minn, i; Elfelt v. Smith, I Minn. 101; Bank of Commerce v. Selden, I Minn. 340; Eaton v. Caldwell, 3 Minn. 134; Short v. McRea, 4 Minn. 78; Caldwell v. Bruggerman, 4 Minn. 270; Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93; Blackman v. Wheaton, 13 Minn. 326; Plummer v. Mold, 14 Minn. 532; O'Brien v. St. Paul, 18 Minn. 176. Kentucky. Denton v. Logan, 3 Met. (Ky.)434- Indiana. Casad v. Holdridge, 50 Ind. 529. California. Sharon v. Sharon, 68 Cal. 29. That the sale counted on is void for having been made without a license, must be set up, Boswell v. Welshoefer, 9 Reporter 630; Gilbert v. Sage, 5 Lans. (N. Y.) 287. That the contract was made in vio- lation of a statute imposing a penalty is new matter. Harris v. White, 81 N. Y. 533; O'Toole v. Garvin, i Hun (N. Y.)92. And so is a defense that the contract is a wagering one. Commiskey v. Will- iams, 20 Mo. App. 606; Goodwin v. Massachusetts Mut. L. Ins. Co., 73 N. Y. 480. And also that it is against public policy. Musser v. Adler, 86 Mo. 445; Milbank v. Jones, 127 N. Y. 370, 24 Am. St. Rep. 454. The defense that the plaintiff's busi- ness is unlawful is new matter. Inter- national, etc., R. Co. v. Greenwood, 2 Tex. Civ. App. 76. Where a carrier is sued for the loss of intoxicating liquors, the defense that the same were held for an unlaw- ful purpose is new matter. Bowen v. Hale, 4 Iowa 430. And so is the defense that bonds were illegally issued. German Sav. Inst. v. Jacoby, 97 Mo. 617. Illegality May be Shown under Denial. The U. S. Supreme Court has held that the illegality of a contract may be shown under a general denial. The reason given for this holding is that a court is, in the due administration of justice, bound to refuse its aid to en- force an illegal contract, though its invalidity be not specially pleaded. Oscanyan v. Arms Co., 103 U. S. 261. Compare Ah Doon v. Smith (Ore- gon, 1893), 34 Pac. Rep. 1093; Tupper v. Thompson, 26 Minn. 385; Prost v. More, 40 Cal. 347; Hentz v- Miner, 58 Hun (N. Y.) 428; Day v. Roth, 18 N. Y. 448; Mills v. Mills, 40 N. Y. 546, 100 Am. Dec. 535; Russell v. Burton, 66 Barb. (N. Y.) 539; Gary . Western Union Tel. Co. 20 Abb. N. Cas (N. Y. Supreme Ct.) 333; O'Brien v. McCann, 58 N. Y.. 376; Clifford v. Dam, 81 N.Y. 52; Griffin v. Long Island R. Co., 101 N. Y. 348. 1. In an action to recover damages for the pollution of a stream, the de- fense of justification by virtue of a statute must be pleaded. Kellogg v. New Britain, 62 Conn. 233. If in the commission of a tort by- husband and wife the wife acted un- der marital coercion, this is new mat- ter to be specially pleaded. Clark v. Bayer, 32 Ohio St. 299, 30 Am. Dec. 593- A defendant in a divorce proceeding cannot prove indignities offered by the plaintiff unless they are pleaded. Miller v. Miller, 14 Mo. App. 418. Assault and Battery. In an action for assault and battery, justification must be specially pleaded. Konigsberger v. Harvey, 12 Oregon 286; Atkinson v. Harran, 68 Wis. 405; Dailey v. Houston, 58 Mo. 361; Thomas z/Werre- meyer, 34 Mo. App. 665. Trespass Quare Clausum Fregit. All matters justifying a trespass on land must be specially pleaded. Lentz v. Victor, 17 Cal. 272; Columbus Co. v. Dayton Co., 18 Cal. 615; Pico v. Coli- mas, 32 Cal. 578; Alferd v. Barnum, 45 Cal. 482; Johnson v. Cuddington, 35 Ind. 43; Carter v. Wallace, 2 Tex. 206; Klais v. Pulford, 36 Wis. 587. Slander. In slander the justification that the words spoken are true must be pleaded. Langton v. Hagerty, 35 Wis. 151; Duval v. Davey, 32 Ohio St. 604. The place where the words were spoken and the circumstances of ex- cuse or privilege are new matter. Gudger v. Penland, 108 N. Car. 593, 23 Am. St. Rep. 73. 845 New Matter. ANSWERS IN CODE PLEADING. What is. /. STATUTE OF LIMITATIONS. It is a fundamental rule of Code pleading that the statute of limitations, when relied upon as a defense to an action, must be specially pleaded. 1 False Imprisonment. In an action for false imprisonment matter in justifica- tion must be pleaded. Gallimore v. Ammerman, 39 Ind. 323; Boaz v. Tate, 43lnd.6i; Wilson v. Manhattan R. Co. (C. PL), 20 N. Y. Supp. 852; Hutchin- son v. Sangster, 4 Greene (Iowa) 340. Thus, if the defendant relies on the bad reputation of the plaintiff as one of the circumstances going to establish a defense, by showing that he had rea- sonable ground to suspect him of the crime charged, he should plead it. Scheer v. Keown, 34 Wis. 350. See B. v. I., 22 Wis. 372; Wilsons. Noonan, 35 Wis. 350; Hill v. Palm, 38 Mo. 13; Moore v. Sanborin, 42 Mo. 490. Justification by Officers. All matters which justify an officer in executing or in refusing to execute process must be pleaded. Thus, in pleading a justifi- cation under a judgment, the judg- ment must be set up in the answer. Jacobs v. Remsen, 12 Abb. Pr. (N. Y. Supreme Ct.) 390. See Graham v. Harrower, 18 How. Pr. (N.Y. Supreme Ct.) 144- And an officer, in order to justify the seizure of property in the possession of a stranger to the writ which he has executed, must plead specially such justification. Glazer -.'. Clift, 10 Cal. 304; Richardson v. Smith, 29 Cal. 530; Leszinsky v. White, 45 Cal. 278; Pico v. Kalisher, 55 Cal. 153. In an action against a sheriff for a violation of his duty in the service of an attachment, if he relies on matters occurring after its issuance and oper- ating as a dissolution of the same, such matters must be specially pleaded. McComb v. Reed, 28 Cal. 281, 87 Am. Dec. 115. Matters justifying an officer in re- fusing to make a levy, as, for instance, that the property is exempt, must be pleaded. Kiskaddon v. Jones, 63 Mo. 190. And a trial by sheriff's jury, justify- ing the refusal to levy an attachment, must be pleaded. Strong v. Patterson, 6 Cal. 156. A waiver of exemption, as a defense to an action for unlawful levy, must be pleaded. Murphy z>. Sherman, 25 Minn. 199. See also State v. Beckner (Ind., 1891), 26 N. E. Rep. 553, where it is held that, under a general denial, in an action against a constable and his bondsmen for alleged trespass done in virtue of his office, justification may be proved. 1. Arkansas. Wassell v. Reardon, ii Ark. 705, 14 Am. Dec. 245; St. Louis, etc., R. Co. v. Brown, 49 Ark. 253; Hutchinson v. Hutchinson, 34 Ark. 164. California. Mathews v. Ferrea, 45 Cal. 51; De Uprey v. De Uprey, 23 Cal. 352, 87 Am. Dec. 81; Lick v. Diaz, 30 Cal. 65; Peoples. Broadway Wharf Co., 31 Cal. 35; Norris v. Elliott, 39 Cal. 73; Grant v. Burr, 54 Cal. 301; McCreery v. Duane, 52 Cal. 262; Mc- Creery v. Sawyer, 52 Cal. 257; Smith v. Richmond, 19 Cal. 477; Weeks v. Hahn, 20 Cal. 620; Grattan v. Wig- gins, 23 Cal. 16; Brown v. Martin, 25 Cal. 82; American Co. v. Bradford, 27 Cal. 362; Farwell v. Jackson, 28 Cal.io6. Colorado. Meyer v. Binkleman, 5 Colo. 262; Chivington v. Colorado Springs Co., 9 Colo. 597; Stevens v. Andrews, 10 Colo. 402. Indiana. Cass County v. Adams, 76 Ind. 505; Hanna v. Jeffersonville R. Co., 32 Ind. 213; Perkins v. Rogers, 35 Ind. 125, 9 Am. Rep. 639; Devar v. Rerick, 87 Ind. 337; Medsker v. Pogue, i Ind. App. 198; Shewalter v. Bergman, 123 Ind. 155; Matlock v. Todd, 25 Ind. 128; Ross v. State, 131 Ind. 548; Kent v. Parks, 67 Ind. 53; Baugh v. Boles, 66 Ind. 377. Idaho. Hydez/. Lamberson, I Idaho 539- Iowa. Moulton v. Walsh, 30 Iowa 361; Springers. Clay County, 35 Iowa 241; Robinson v. Allen, 37 Iowa 27; Stale v. Mclntire, 58 Iowa 572; Shearer v. Mills, 35 Iowa 499. Kentucky. Chiles v. Drake, 2 Mete. (Ky.) 146, 74 Am. Dec. 406; Rankin v. Tu'rney, 2 Bush (Ky.) 555. Kansas. Backus v. Clark, I Kan. 303, 83 Am. Dec. 437; Zane v. Zane, 5 Kan. 134; Parker v. Berry, 12 Kan. 351- Minnesota. Kennedys. Williams, n Minn. 314; Eastman v. St. Anthony Falls, etc., Co., 12 Minn. 137; Me Ardle v. McArdle, 12 Minn. 98; Daven- port v. Short, 17 Minn. 24; Hoyt v. McNeil, 13 Minn. 390; Millette v. Mehmke, 26 Minn. 306. 846 New Matter. ANSWERS IN CODE PLEADING. What is. m. CONTRIBUTORY NEGLIGENCE. Contributory negligence, to be available as a defense, must, as a general rule, be specially pleaded. 1 n. STATUTE OF FRAUDS. Some authorities hold that the defense of the Statute of Frauds cannot be made available in an action unless pleaded as a defense or presented by the aver- ments of the complaint.'- 2 The probable weight of authority, however, is to the effect that a defendant is not required to plead the Statute of Frauds, but that he may take advantage of it by objecting to the introduction of any evidence except such as the statute prescribes. 3 Missouri. Orr v. Rode, 101 Mo. 388; Bell v. Clark, 30 Mo. App. 224; Harper v. Eubank, 32 Mo. App. 258; Schuchman v. Heath, 38 Mo. App. 280; Fairbanks v. Long, 91 Mo. 628. North Carolina. Long v. Bank, 81 N. Car. 41; Guthrie v. Bacon, 107 N. Car. 338. Nebraska. Alexander v. Meyers, 33 Neb. 773; Mills v. Rice, 3 Neb. 76; Scroggin v. National Lumber Co. {Neb., 1894), 59 N. W. Rep. 548- New York. Riley v. Corwin, 17 Hun (N. Y.) 597; Sands v. St. John. 36 Barb. (N. Y.) 628; Baldwin v. Martin, 14 Abb. Pr. N. S. (N. Y. Super. Ct.)g; Dezengremel v. Dezengremel, 24 Hun (N. Y.) 457; Esselstyn v. Weeks, 12 N. Y. 636; Miller v. Brenham, 68 N. Y. 4; White v. Spencer, 14 N. Y. 247; Cotton v. Maurer, 3 Hun (N. Y.) 552; Bihin v. Bihin, 17 Abb. Pr. (N. Y. Su- preme Ct.) 19; Vorhies v. Vorhies, 24 Barb (N. Y.) 150; Tomlinson v. Miller, 7 Abb. Pr. N. S. (N. Y. Super. Ct.) 364. Compare Falls of Neuse Mfg. Co. v. Brooks, 106 N. Car. 107; Moore v. Garner, 101 N. Car. 374; Hobbs v. Barefoot, 104 N. Car. 225. In an action to surcharge and falsify and restate an account, the statute of presumptions, instead of the statute of limitations, is proper to be pleaded. Nunnery v. Averitt, in N. Car. 394. An ackowledgment in writing of the existence of a debt to save it from the bar of the statute should be pleaded. Zoll v. Carnahan, 83 Mo. 35. For a treatment of the subject of the statute of limitations, see article LIMI- TATIONS, STATUTE OF. 1. Gram v. Northern Pac. R. Co., I N. Dak. 253; Conlin v. San Francisco, etc., R. Co., 36 Cal. 404; Hudson v. Wabash Western R. Co., 101 Mo. 13; O'Connor v. Missouri Pac. R. Co., 94 Mo. 155; Donovan v. Hannibal, etc., R. Co., 89 Mo. 147; Schlereth v. Missouri Pac. R. Co., 96 Mo. 509; Thompson v. North Missouri R. Co., 51 Mo. 190, ii Am. Rep. 443; Loyd v. Hannibal, etc., R. Co., 53 Mo. 509; Petty v. Hannibal, etc., R Co., 88 Mo. 306; Taylor v. Missouri Pac. R. Co., 86 Mo. 457; Bell v. Hannibal, etc., R. Co., 86 Mo. 599; Young v. Kansas, 27 Mo. App. 101; Ellet v. St. Louis, etc., R. Co., 76 Mo. 518; Ams- den v. Dubuque, etc., R. Co., 13 Iowa 132; Hudson v. Charleston, etc., R. Co., 104 N. Car. 491. The rule that the defendant must plead as new matter contributory neg- ligence of plaintiff is not affected by the fact that plaintiff anticipates this and alleges his own care. Hudson v. Wabash Western Co., 101 Mo. 13. Contra, Karle v. Kansas City, etc., R. Co., 55 Mo. 482. For a treatment of the subject of pleading and practice in the case of contributory negligence, see CON- TRIBUTORY NEGLIGENCE. 2. New York. Wells v. Monihan, 129 N. Y. 161; Duffy v. O'Donovan, 46 N. Y. 223. Colorado. Hunt f. Hayt.io Colo. 279. California. Osborne v. Endicott, 6 Cal. 149, 65 Am. Dec. 498; Peralta v. Castro, 6 Cal. 358. North Carolina. Holler v. Richards, 102 N. Car. 545. Missouri. Gardner v. Armstrong, 31 Mo. 536; Maybee v. Moore, 90 Mo. 340; Sherwood v. Saxton, 63 Mo. 79; Donaldson v. Newman, 9 Mo. App. 235; Taylor v. Penquite, 35 Mo. App. 389; Rabsuhl v. Lack, 35 Mo. 316; Scharff v. Klein, 29 Mo. App. 549; Graff v. Foster, 67 Mo. 512; Gordon v. Madden, 82 Mo. 193; Aliens. Richard, 83 Mo. 59. 3. South Dakota. Cosand v. Bun- ker, 2 S. Dak. 295. 847 New Matter. ANS WERS IN CODE PLEADING. What is. o. WANT AND FAILURE OF CONSIDERATION. Where the contract is such that the law presumes a consideration, the defense of a want of consideration is new matter. 1 p. LEAVE AND LICENSE. The defense of leave and license must be specially pleaded. 3 North Carolina. Morrison v. Baker, 81 N. Car. 77. Missouri. Bernhardt v. Walls, 29 Mo. App. 206; Wildbahn v. Robidoux, II Mo. 659; Hook v. Turner, 22 Mo. 335; Springer z'.Kleinsorge, 83 Mo. 156. Kentucky. Linn Boyd Tobacco Warehouse Co. v. Terrill, 13 Bush (Ky.) 4 6 3 . New York. Haight v. Child, 34 Barb. (N. Y.) 186; Marston v. Swett, 66 N. Y. 206, 23 Am. Rep. 43; Am. burger v. Marvin, 4 E. D. Smith (N. Y.) 393; Livingston v. Smith, 14 How. Pr. (N. Y. Supreme Ct.) 490; Nu- glish v. Marvin, Iz8 N. Y. 380. Minnesota. Wentworth v. Went- worth, 2 Minn. 277, 72 Am. Dec. 97. Iowa. Mahana v. Blunt, 20 Iowa 142. Indiana. Suman v. Springate, 67 Ind. 115; McMillen v. Terrell, 23 Ind. 163. California. Harris v. Frank, 81 Cal. 281; McDonald v. Mission View Home- stead Assoc., 51 Cal. 210. For the treatment of the subject of the pleading and practice relative to the Statute of Frauds, see FRAUDS, STATUTE OF. 1. University v. Livingston, 57 Iowa 307, 42 Am. Rep. 42; Beeson v. How- ard, 44 Ind. 413; Frybarger v. Cocke- fair, 17 Ind. 404; Bingham v. Kim- ball, 17 Ind. 397; Happe v. Stout, 2 Cal. 460; Brown v. Ready (Ky., 1893), 20 S. W. Rep. 1036. A Promissory Note imports a consid- eration; a want of consideration must be pleaded. Winters v. Rush, 34 Cal. 137; Patterson v. Gile, i Colo. 200; Munro v. King, 3 Colo. 238. See Alden v. Carpenter, 7 Colo. 87. In an Action for Services performed, if defendant relies, as a defense, upon an agreement that they should be ren- dered gratuitously, he should specially plead that fact. Scott v. Morse, 54 Iowa 732. Anticipation of Defense. But if the plaintiff anticipates the defense of a want of consideration, by needlessly al- leging that there was a consideration, he must prove the consideration, and the want of a consideration may be proven under a general denial. Bogie. v. Nolan, 96 Mo. 95. Failure of Consideration is new mat- ter. Williams v. Mellon, 56 Mo. 262; Smith v. Rembaugh, 21 Mo. App. 390; Redman v. Hampton, 26 Mo. App. 504; Higgins v. Germaine, i Mont. 235; Smith v. Sherwood, 2 Tex. 460; Keeble v. Black, 4 Tex. 69. Texas. In any suit founded on a note or other instrument in writing, under the seal of the party charged therewith, the defendant may, by a special plea, impeach or inquire into the consideration thereof, in the same manner as if such writing had not been sealed; but the plea must be verified by affidavit. Stillman v.. Canales, 39 Tex. 406; Letnmon z> Hanley, 28 Tex. 219; Harris v. Cato, 26 Tex. 338; English v. Helms, 4 Tex. 228; Conner v. Autrey, 18 Tex. 427; Short v. Price. 17 Tex. 397; Drew v. Harrison. 12 Tex. 279; Muckleroy v. Bethany, 23 Tex. 163; Vineyard v. Smith, 34 Tex. 454; Pierce v. Wright, 33 Tex. 631; Wimbish v. Holt, 26 Tex. 673; Clopton v. Pridgen, 8 Tex. 308; Williams v. Bailes, 9 Tex. 61. 2. A license to enter upon and oc- cupy land for any purpose must be specially pleaded. Snowden v. Wilas, 19 Ind. ii, 81 Am. Dec. 370; Chase v. Long, 44 Ind. 427; Alford v. Barnum, 45 Cal. 482. Under a plea of license the title of land does not come in question. Rath- bone v. McConnell, 20 Barb. (N.Y.)3ii. In an action of replevin, if the de- fense is that the defendant holds pos- session under license of a partner of plaintiff, it must be specially pleaded. Tell v. Beyer, 38 N. Y. 161. In an action to recover damages for injuries received by plaintiff in conse- quence of falling through a coal-hole in the sidewalk, in front of defendant's premises, the defense that there was a license to construct the hole must be specially pleaded, and it must be alleged that the terms of the license were complied with. Clifford v. Dam, 81 N. Y. 53. See also Haight v. Badgeley, 15 Barb. (N. Y.)499; Beaty. v. Swarthout, 32 Barb. (N. Y.) 293. 848 New Matter. ANSWERS IN CODE PLEADING. What is. q. CHAMPERTY. Champerty is new matter, and must be pleaded. 1 r. TENDER. Tender is new matter, to be specially pleaded. 2 s. ACCORD AND SATISFACTION. Accord and satisfaction are new matter. 3 See ACCORD AND SATISFACTION, ante, p. 73. t. RELEASE. Release must be specially pleaded. 4 n. RATIFICATION, SUBROGATION, AND RESCISSION. Ratifica- tion, subrogation, and rescission are all new matter. They must be pleaded. 5 v. AWARD. A defendant cannot avail himself of an award as a bar to an action unless he alleges it as such in his answer. 6 See article AWARDS. w. IMMATURITY OF THE INDEBTEDNESS. That the debt is not yet due is new matter, to be pleaded. 7 x. DISCHARGE IN BANKRUPTCY. A discharge in bankruptcy is not a bar to an action unless it is pleaded. 8 1. Moore v. Ringo, 82 Mo. 468; Brumback v. Oldham, i Idaho 710; Allison v. Chicago, etc., R. Co., 42 Iowa 274. Contra. Champerty need not be specially pleaded. If the fact comes to the knowledge of the court in any proper manner, it will refuse longer to entertain the proceeding. Barker v. Barker, 14 Wis. 131. 2. Bryan -v. Maume, 28 Cal. 239 ; Hegler v. Eddy, 53 Cal. 597; Meredith v. Santa Clara Min. Assoc., 56 Cal. 178. See article TENDER. A tender after the commencement of the action must be pleaded. Hegler v. Eddy, 53 Cal. 597. 3. Berdall v. Bissell, 6 Colo. 162; Fitch v. Brockmon, 2 Cal. 576; Piercy Sabin, 10 Cal. 30, 70 Am. Dec. 692; Coles v. Soulsby, 21 Cal. 47; Sweet v, Burdett, 40 Cal. 97; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696; Jacobs v. Day, 5 Misc. Rep. (N. Y.) 410. Contra. Gavin v. Annan, 2 Cal. 494; McLarren v. Spalding, 2 Cal. 510; Looby v. West Troy, 24 Hun (N. Y.) 78. 4. Grunwald v. Freese (Cal., 1893), 34 Pac. Rep. 73; Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Coles v. Soulsby, 21 Cal. 50; Mulford v. Estu- dillo, 23 Cal. 95; Seehorn v. Big Mead- ows, etc., Wagon Road Co., 60 Cal. 240; Bostwick v. McEvoy, 62 Cal. 503; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696. Contra, McLarren v. Spalding, 2 Cal. 510. 5. Ratification. Noble v. Blount, 77 Mo. 235; Stows v. Richmond, 21 Mo. App. 17; Fernean v. Whitford, 39 Mo. App. 311; Kersey v. Garton, 77 Mo. 645; Capital Bank v. Armstrong, 62 Mo. 59; Wade v. Hardy, 75 Mo. 399. Subrogation. Aldrich v, Willis, 55 Cal. 81. Rescission. Reynolds v. Reynolds, 45 Mo. App. 622; Riggins v. Missouri River, etc., R. Co., 73 Mo. 598; Brown v. Weldon, 27 Mo. App. 251. 6. Brazill v. Isham, 12 N. Y. 9; Piercy v. Sabin, 10 Cal. 30, 70 Am. Dec. 692; Bowen v. Lazalere, 44 Mo. 383- In an action for work and labor, the defense that the plaintiff agreed to ar- bitrate as to the price to be paid must be specially pleaded. Lautenschlager v. Hunter, 22 Minn. 267. 7. Hargan v. Burch, 8 Iowa 309; Swan Lamp Co. v. Brush-Swan Elec- tric Light Co., 61 N. Y. Super. Ct. u. In an action for goods sold and delivered, the defense that notes were given in payment, which are not yet due, is new matter. Ballinger v. Lantier, 15 Kan. 608. In an action upon a note, it is a suf- ficient ground for excluding evidence of the fact that the time for payment of the note had been extended, that no such defense is set up in the answer. Newell v. Salmons, 22 Barb. (N. Y.) 647. 8. Cornell v. Dakin, 38 N. Y. 253; Levy v. Haake, 53 Cal. 269; Collins v. Scheeline, 52 Cal. 450; Goodhue v. King, 55 Cal. 377. The court in which an action is pending cannot take judicial notice of proceedings in bankruptcy subse- quently commenced, however seriously I Encyc. PI. & Pr. 54. 849 New Matter. ANSWERS IN CODE PLEADING. What is. y. USURY. Usury must be specially pleaded. 1 z. BONA-FIDE PURCHASER The issue of " innocent pur- chaser" cannot be raised by a general denial, but must be affirm- atively pleaded, and the onus of proof lies on the pleader. 2 z\ OBJECTION TO STATUTE OR ORDINANCE. Any objection to a statute or ordinance upon which the action is founded is new matter. 3 z\ TITLE IN ACTION OF TRESPASS. Possession is suf- ficient to enable the plaintiff to maintain the action of trespass quare clausum fregit. In such an action the plaintiff's title, if not put in issue, is to be taken on the trial as admitted. 4 s 3 . LlENS. In an action to recover property the defense that the defendant has a lien thereon is new matter. 5 they may affect the rights of the parties to the suit. It is the duty of the court to proceed to a decree as between the parties before it, until by some proper pleading in the case it is informed of the changed relations of any of those parties to the subject-matter of the suit. Amador Canal, etc., Co. v. Mitchell, 59 Cal. 168. If the discharge in bankruptcy is obtained too late to be pleaded, either originally or by amendment, the rem- edy, it seems, is by motion for per- petual stay of execution. Cornell v. Dakin, 38 N. Y. 253; Palmer v. Hutch- ins, i Cow.'(N. Y.) 42; Baker v. Tay- lor, i Cow. (N. Y.) 165. Composition Agreement. A composi- tion agreement with creditors is new matter to be specially pleaded when the suit is on original demand. Sweet v. Burdett, 40 Cal. 97; Smith v. Owens, 21 Cal. ii. 1. Manning v. Tyler, 21 N. Y. 567; Fay v. Grimsteld, 10 Barb. (N. Y.) 321; Morford v. Davis, 28 N. Y. 481. See article USURY. 2. Holdsworth v. Shannon, 113 Mo. 508; Weaver v. Barden, 49 N. Y. 286. 3. The objection that a statute was not constitutionally passed by ayes and noes, during the presence of the re- quired numbers, must be set up by answer. Darlington v. Mayor, 2 Robt. (N.Y.)2 74 . In condemnation proceedings the defense that there are irregularities in the proceedings of the council to open a street is new matter. Santa Ana v. Harlin, 99 Cal. 539. In an action for injuries from a train on the ground that it was running at a rate of speed in excess of that fixed by ordinance, defendant cannot show that the ordinance is unreasonable and invalid unless such defense is specially pleaded. Bluedorn v. Mis- souri Pac. R. Co. (Mo., 1893), 24 S. W. Rep. 57. 4. Althause v. Rice, 4 E. D. Smith (N. Y.) 347; Squires v. Seward, 16 How. Pr. (N. Y. Supreme Ct.) 478. In an action for diverting a stream, evidence that the title was in a third person, and that therefore plaintiff had no right in the stream, is new matter. Hill v. Water, etc., Com'rs, 77 Hun (N. Y.)49i. See Ferris v. Brown 3 Barb. (N. Y.) 105; Mason v. Vestal, 88 Cal. 396; Patterson v. Clark, 20 Iowa 429; Dyson -v. Ream, 9 Iowa 51. But where in an action for trespass the complaint alleges both title and possession in plaintiff, then plaintiff's title may be attacked under a denial. Niles v. Lindsley, 8 How. Pr. (N. Y. Super. Ct.) 131. 5. Guille v. Fook, 13 Oregon 577; Stowell v. Otis, 71 N. Y. 40. And the particular lien must be pleaded. Under an allegation of one lien, a different one cannot be shown. Graham v. Harrower, 18 How. Pr. (N. Y. Supreme. Ct.) 144. See Wehle z/. Butler, 12 Abb. Pr. N. S. (N. Y. Su- per. Ct.) 139. The particulars of a claim adverse to a mortgage lien must be specially pleaded. Mitchell v. Steelman, 8 Cal. 369- Rent paid by a tenant in possession, in advance of a judgment lien, is new matter. Webster v. Cook, 38 Cal. 423. The right to rents as against a me- chanic's lien on a leasehold interest is new matter. Gaskill v. Moore, 4 Cal. 233- And so is the loss of a mechanic's 850 New Matter. ANSWERS IN CODE PLEADING. What is. z\ MINING RULES AND CUSTOMS. Mining rules and customs must be specially pleaded with particularity. 1 z\ MISTAKE. The defense of " mistake " in an instrumenfis new matter. 2 z\ RELEASE OF GUARANTORS, INDORSERS, AND SURETIES. Matters operating to discharge a guarantor, indorser, or surety are new matter, to be pleaded. 3 z\ CONTRACT NOT PROPERLY PERFORMED. In an action by a contractor to recover the contract price, the defense that the contractor did his work in an unworkmanlike manner is new matter, to be pleaded. 4 z\ ALL MATTER IN AVOIDANCE. Lastly, all matter in avoid- ance of the cause of action must be pleaded. 5 lien by acquiescence in the surrender of a leasehold interest. Gaskill v. Moore, 4 Cal. 233. 1. Dutch Flat Water Co. v. Mooney, 12 Cal. 534; Esmond v. Chew, 15 Cal. 137- Forfeiture of a mining claim under local mining laws must be specially pleaded, and cannot be shown under the general issue. Morenhaut v. Wil- son, 52 Cal. 263; Dutch Flat Water Co. v. Mooney, 12 Cal. 534; Du Prat v. James, 61 Cal. 361. Contra, Bell v. Brown, 22 Cal. 671. 2. Com'rs, etc., v. Barnard, 98 Cal. 199; Warner v. Myrick, 16 Minn. 91. Where the answer alleges only fraud, mistake cannot be proved. Leighton v. Grant, 20 Minn. 345. That a deed absolute was intended as a mortgage is new matter. Pico v. Gallardo, 52 Cal. 206; Davenport v. Turpin, 43 Cal. 597. In an action of replevin in which the plaintiff relies on a bill of sale, the fact that such bill of sale is a mortgage is new matter. McAnnulty v. Seick, 59 Iowa 586. 3 Horton v. Ruhling, 3 Nev. 498; Taylor v. Jeter, 23 Mo. 244; Missouri Bank v. Matson, 24 Mo. 333; Hemp- stead v. Hempstead, 27 Mo. 187; Smith v. Rice, 27 Mo. 505, 72 Am. Dec. 281; Ferguson v. Turner, 7 Mo. 497; Rucker v. Robinson, 38 Mo. 154, 90 Am. Dec. 412; Pitts v. Fugate, 41 Mo. 405; Headlee v. Jones, 43 Mo. 235; Rice v. Morton, 19 Mo. 263; Mulford v. Estu- dillo, 23 Cal. 96; People v. Ah Luck, 62 Cal. 503. A levy under an execution upon suf- ficient personal property to discharge sureties for the judgment is new mat- ter. Mulford v. Estudillo, 23 Cal. 95. 4. Kendall v. Vallejo, i Cal. 371; Blethen v. Blake, 44 Cal. 117; McGuire v. Quintana, 52 Cal. 427. 5. California. Walton v. Minturn, 1 Cal. 362; Hathaway v. De Soto, 21 Cal. 192; Ferine v. Teague, 66 Cal. 446; Peoplei'. Todd, 23 Cal. 181; Janin v. Browne, 59 Cal. 46. Indiana. Watkins v. Jones, 28 Ind. 12; Evansville v. Evans, 37 Ind. 230. Iowa. Osborne v. Evans (Iowa, 1894), 58 N. W. Rep. 920. South Dakota. Wyckoff v. Johnson, 2 S. Dak. 91. Missouri. Meyer v. Broadwell, 83 Mo. 571. New York. Dubois v. Hermance, 56 N. Y. 673; Riggs v. American Tract Soc., 84 N. Y. 330; Abbe v. Clarke, 31 Barb. (N. Y.) 238; Walrod v. Bennett, 6 Barb. (N. Y.) 144; Miner v. Beek- man, 5ojN. Y. 337; Koehler v. Adler, 19 Abb. L. J. (N. Y.) 300; Smith v. Holmes, 19 N. Y. 271; Laraway v. Per- kins, 10 N. Y. 371; Douglas v. Haber- stro, 25 Hun (N. Y.) 262; Wallace v. Blake (Super. Ct.), 30 N. Y. St. Rep. 248; Codd v. Rathbone, 19 N. Y. 37; Brennan v. New York, 62 N. Y. 365; Maretzek v. Cauldwell, 19 Abb. Pr. (N. Y. Super. Ct.) 35; Fox v. Turner (Supreme Ct.), 17 N. Y. St. Rep. 666; Burnside v. Matthews, 54 N. Y. 78; German Sav. Bank v Carrington, 14 N. Y. Wkly. Dig. 475; Willover v. Hill, 72 N. Y. 36. In ejectment, a deed to the defendant executed subsequently to the com- mencement of the action is admissible in evidence if it is specially pleaded by supplemental answer. Roper v. Me Fadden, 48 Cal. 346; McLane v. Bo- vee, 35 Wis. 27. In an action on a policy of insurance, 851 Joinder of ANSWERS IN CODE PLEADING. Defenses. XIV. JOINDEB OF DEFENSES. 1. Defendant May Plead as Many Defenses as He Has. The general rule is that a defendant is bound to set up every defense, legal or equitable or both, which he may have to the action, and that he waives those not pleaded. 1 2. Manner of Pleading Several Defenses. Completeness. Each de- fense separately stated as a separate defense must be in itself complete, and must contain all that is necessary to answer the whole cause of action, or to answer that part thereof which it purports to answer. The former rule in this respect is not re- laxed by the Code.* the fact that the insured person in- creased the risk by violating the con- ditions of the policy is new matter, Cassacia v. Phoenix Ins. Co.; 28 Cal. 629; Tischler v. California Farmers' Mut. F. Ins. Co. ,66 Cal. 178; also that he caused the building to be burned, Capuro v. Builders' Ins. Co., 39 Cal. 123. The incapacity of a corporation to purchase and hold land, when used as a defense to an action for spe- cific performance, is new matter. Young Men's Christian Assoc. v. Du- bach, 82 Mo. 475. So is the defense that the corpora- tion has ceased to exist. Heaston v. Cincinnati, etc., R. Co., 16 Ind. 275, 79 Am. Dec. 430. Custom. A special custom of a board of brokers is new matter. Goldsmith v. Sawyer, 46 Cal. 209. Exception. Where an exception exists which constituted a defense, such exception should be pleaded. McCormick v. Holbrook, 22 Iowa 487, 92 Am. Dec. 400. Laches. Laches must be specially pleaded. De Witt v. Miller, 9 Tex. 239; Curlin v. Hendricks, 35 Tex 225. Duress. Duress must be specially pleaded. Murdock v. Lewis, 26 App. 234- Failure to Make Demand. A failure to make demand, when a demand is required of plaintiff, is new matter. Weil v. Tyler, 38 Mo. 545; Beardslee v. Boyd, 37 Mo. 180; Reid v. Mullins, 43 Mo. 306; Lee v. Casey, 39 Mo. 383; Westcott v. De Montreuille, 30 Mo. 252; State v. Grupe, 36 Mo. 365. Instrument not Stamped. The de- fense that an instrument is not stamped as required by the United States revenue laws must be specially pleaded. Glidden v. Higbee, 31 Iowa 379- 1. Witte v. Lockwood, 39 Ohio St. 141; Mott v. Burnett, 2 E. D. Smith, (N. Y.) 51; Phillips v. Gorham, 17 N. Y. 270; Lattin v. McCarty, 41 N. Y. 107; Melvin -v. Stephens, 82 N. Car. 283; Bean v. Western North Carolina R. Co., 107 N. Car. 731; Bell v. Wright, 31 Kan. 237; Kimball v. Mc- Intyre, 3 Utah 77; Vail v. Jones, 31 Ind. 467; Youngs v. Bell, 4 Cal. 201; Carpentier v. Oakland, 30 Cal. 442. The defendant must make all his defenses, both legal and equitable, in his answer; and, if necessary, transfer the cause to the equity docket. Reeve v. Jackson, 46 Ark. 272. Both a legal and an equitable de- fense may be set up in an action of ejectment. Bodley z>. Ferguson, 30 Cal. 513. Quo Warranto. In a quo -warranto proceeding the defendant may set forth in his answer more than one de- fense. People v. Stratton, 28 Cal. 382. Missouri. Proceedings in attach- ment are excepted out of the rule per- mitting the setting up by answer as many defenses as one may have. Houghland v. Dent, 52 Mo. App. 237. Texas. The defendant to a petition at law or in equity should at once file every matter, either of law or of fact, which he deems necessary to his de- fense. McKensie v. Hamilton, Dall. (Tex.) 461; Smith v. Doak, 3 Tex. 215. 2. Baldwin v. U. S. Tel. Co., 54 Barb. (N. Y.) 506; Loosey v. Orser, 4 Bosw. (N. Y.) 391; Xenia Branch Bank v. Lee, 7 Abb. Pr. (N. Y. Super. Ct.) 372; Hammond v. Earle, 58 How. Pr. (N. Y. Supreme Ct.) 426; Krutz v. Fisher, 8 Kan. 96; Davis v. Robin- son, 67 Iowa 355; National Bank v. Green, 33 Iowa 140; Cairo, etc., R. Co. v. Parks, 32 Ark. 131; Sumner v. Shipman, 65 N. Car. 623; Keathley v. 852 Joinder of ANSWERS IN CODE PLEADING. Defenses. Separate statement. The several defenses should be separately stated, 1 and no defense can be aided by a resort to other parts of the answer to which it contains no reference in terms or by neces- sary implication. 2 But, for the purpose of avoiding repetiton of facts Branch, 88 N. Car. 379; Lash v. Ren- dell, 72 Ind. 475; Frazee v. Frazee, 70 Ind. 411; Cornwell v. Finnell, n Ind. 527; Rogers v. Place, 29 Ind. 577; Bouslog v. Garrett, 39 Ind. 338; Al- vord v. Essner, 45 Ind. 156; Reid v. Huston, 55 Ind. 173; Smith v. Little, 67 Ind. 549; Lemmon v. Hanley, 28 Tex. 219; Meyendorf v. Frohner, 3 Mont. 282. Compare Cobb v. Frazee, 4 How. Pr. (N. Y. Supreme Ct.) 413; Swift v. Kingsley 24 Barb. (N. Y.) 541; Hamer v. McFarlin, 4 Den. (N. Y.)sog; Ayres v. Covill, 18 Barb. (N. Y.) 260; Kneedler v. Sternbergh, 10 How. Pr. (N. Y. Supreme Ct.) 67; Brown v. Ryckman, 12 How. Pr. (N. Y. C. PI.) 313; Van Derveer v. Sutphin, 5 Ohio St. 294; Van Ingen v. Newton, I Disney (Ohio) 482; Seely v. Blair, Wright (Ohio) 683. Each paragraph of an answer must be complete in itself, and a failure to describe the piece of land sought to be released from the lien of a mortgage would be a fatal defect in a paragraph. Knarr v. Conaway, 42lnd. 260. Where the first paragraph of a com- plaint is based upon a special contract to furnish material and erect a house for the defendant, and the second is based upon a quantum meruit for ma- terial furnished and labor performed, paragraphs of the answer which plead the special contract and allege its breach, each being pleaded as a de- fense to the entire complaint, do not constitute a defense to the paragraph upon the quantum meruit, and are de- murrable. Everroad v. Schwartzkopf, 123 Ind. 35. See Musser v. Crum, 48 Iowa 53. The general rule is that the judg- ment is given on the whole record. Swift v. Kingsley, 24 Barb. (N. Y.) 541- Cannot be Construed as a Counterclaim. No single pleading or defense can be made to perform the double func- tion of alleging matter in bar of an action, and at the same time of setting up a cause of action in favor of the defendant. Campbell v. Routt, 42 Ind. 410. But in a suit upon a contract a cer- tain state of facts may at the same time constitute a defense to the action, and be a proper ground of counter- claim; and if pleaded by the defendant in this double aspect, upon a single statement of facts and without for- mally separating the defense from the counterclaim, the defect, if it be one, is merely formal, and objection must be made by motion. Lancaster, etc., Mfg. Co. -v. Colgate, 12 Ohio St. 345. See Mull v. Walker, 100 N. Car. 46. 1. Adams v. Trigg, 37 Mo. 141; Donahue v. Prosser, 10 Iowa 276; Ly- man v. Corwin, 27 Ark. 580. But a defect in this respect is reached by motion only. Truitt v. Baird, 12 Kan. 420. Where an answer is divided into paragraphs which do not state sepa- rate defenses, but which, taken to- gether, state one defense, a paragraph of such answer is not subject to de- murrer. Benedict v. Hunt, 32 Iowa 27. The plaintiff may elect to reply to separate defenses, although they are not separately stated. Bass v. Upton, I Minn. 408. See Moore v. Edmiston, 70 N. Car. 510. where the answer in a slander case was construed to contain the two defenses of justification and statute of limitations ; also Forbes v. Petty, 37 Neb. 899, where the two pleas of arbitration and accord and satisfaction were blended, and held good. Where the defenses cover the entire complaint, it is not necessary to refer to the respective causes of action to which they are respectively intended to refer. Woods v. Reiss, 78 Hun (N. Y.) 78. 2. Loosey v. Orser, 4 Bosw. (N. Y.) 391; Ritchie v. Garrison, 10 Abb. Pr. (N. Y. Super. Ct.) 246; Baldwin v. U. S. Tel. Co., 6 Abb. Pr. N. S. (N. Y. Supreme Ct.) 405; Jackson v. Van Slyke, 44 Barb. (N. Y.) 116, note; Spencer v. Babcock, 22 Barb. (N. Y.) 326; Xenia Branch Bank v. Lee, 7 Abb. Pr. (N. Y. Super. Ct.) 373; Bene- dict v. Seymour, 6 How. Pr. (N. Y. Supreme Ct.) 298; Markham v. Barnes (Supreme Ct.), 8 N. Y. St. Rep. 502. A defense cannot be made out by 853 Joinder of ANSWERS IN CODE PLEADING. Defenses alike applicable to each of several defenses, it is allowable to aver them either in one of the distinct and separate statements of a defense, etc., or by way of introduction to all, and, thereafter, in the subsequent separate statements, to include them in each by distinct and intelligible reference. 1 How stated. While, in an answer under the Code, each state- ment intended as a defense must be complete in itself, no formal commencement or conclusion is required to mark it as a separate defense. 8 3. Matter in Abatement, and Matter in Bar. The Code has abro- gated the rule of the common law that matters in abatement must be pleaded and disposed of before pleading in bar to the action. Matters in abatement and in bar may be joined in one answer. 3 connecting two or more separate de- fenses together. Spencer -v. Babcock, 22 Barb. (N.Y.) 326; Ayrault v. Cham- berlain, 33 Barb. (N. Y.) 229; Ritchie v. Garrison, 10 Abb. Pr. (N. Y. Super. Ct.) 246; Ryle v. Harrington, 4 Abb. Pr. (N. Y. Supreme Ct.) 421. 1. Krutz v. Fisher, 8 Kan. 96; Mey- endorf v. Frohner, 3 Mont. 282; Xenia Branch Bank v. Lee. 7 Abb. Pr. (N. Y. Super. Ct.) 372; Landau v. Levy, I Abb. Pr. (N. Y. Super. Ct.)376; Bald- win v. U. S. Tel. Co., 54 Barb. (N. Y.) 506; Ayrault v. Chamberlain, 33 Barb. (N. Y.) 229; Ayres v. Covill, 18 Barb. (N. Y.) 260; Sinclair v. Fitch, 3 E. D. Smith (N. Y.) 677. Where the note sued on is described or mentioned in one defense, a refer- ence in a subsequent defense to the "said note" is sufficient. Williams v. Richmond, 9 How. Pr. (N. Y. Supreme Ct.) 522. See Ranney -v. Smith, 6 How. Pr. (N. Y. Supreme Ct.) 420. 2. Bridge v. Payson, 5 Sandf. (N. Y.) 210; Lippincott v. Goodwin, 8 How. Pr. (N. Y. Supreme Ct.) 242. Where an answer was divided into paragraphs, each numbered and com- mencing with the words " and de- fendant further answering says," it was held that the defendant was pre- cluded from showing that the para- graphs constituted one defense. Nicoll v. Fash, 59 Barb. (N. Y.) 275. To commence each defense with the words " and for a further de- fense " is sufficient. Benedict v. Sey- mour, 6 How. Pr. (N. Y. Supreme Ct.) 298. Where a separate defense in an answer containsallegations and denials which can by no possibility refer to any other than a particular cause of action set out in the complaint, the defense distinctly refers to that cause of action. Crasto v. White, 52 Hun (N.Y.) 473. The words "and for a further answer and second defense" are a sufficient compliance with the Code provision requiring the defenses to be separate- ly stated and numbered. No figures are necessary. Mundy v. Wight, 26 Kan. 173. The Kule. In stating defenses there is but one safe rule, and that is, to indicate distinctly, by fit and appro- priate words, where the statement of defense commences and where it con- cludes. Lippincott v. Goodwin, 8 How. Pr. (N. Y. Supreme Ct.) 242; Benedict v. Seymour, 6 How. Pr. (N.Y. Supreme Ct.) 298. See also Boyce v. Brown, 7 Barb. (N. Y.) 80; Otis v. Ross, 8 How. Pr. (N. Y. Supreme Ct.) 193; Willet v. Metropolitan Ins. Co., 2 Bosw. (N. Y.) 678; Ross v. Duffy (Supreme Ct.), 12 N. Y. St. Rep. 584; Spencer v. Tooker, 12 Abb. Pr. (N. Y. Supreme Ct.) 353; Hammond v. Earle, 58 How. Pr. (N. Y. Supreme Ct.) 426; Myers -v. Bank, of Portsmouth (Supreme Ct.), 2 N. Y. St. Rep. 125; Thompson v. Kearney (C. P.), 12 N. Y. St. Rep. 682; Swift v. Kingsley, 24 Barb. (N. Y.) 541; Ayres v. Covill, 18 Barb. (N. Y.) 260; Towns- end v. Platt, 3 Abb. Pr. (N. Y. C. PI.) 325; Gardner v. Clark, 21 N. Y. 399; Hamilton v. Hough, 13 How. Pr. (N.Y. Supreme Ct.) 14; Ketcham v. Zerega, i E. D. Smith (N. Y.) 553. 3. Dawley v. Brown, 9 Hun. (N. Y.) 462; Owens v. Loomis, 19 Hun (N. Y.) 607; Gardner v. Clark, 21 N. Y. 399; Mayhew v. Robinson, loHow. Pr. r N. 854 Joinder of ANSWERS IN CODE PLEADING. Defenses. 4. States Where Inconsistent Defenses are Allowed. Some states allow absolutely inconsistent defenses to be set up, and no mo- tion to strike out or elect will be entertained. In these states the trial is the only thing which will determine which defense is true and which false. 1 Y. Supreme Ct.); 162; Sweet v. Tut- tle, 14 N. Y. 465; Bridge v. Payson, 5 Sandf. (N.Y.) 210; Montague v. Brown, 104 N. Car. 161; Woody v. Jordan, 69 N. Car. 189; Hawkins v. Hughes, 87 N. Car. 115, cited in 104 N. Car. 161; Page v. Mitchell, 37 Minn. 368; Erb v. Perkins, 32 Ark. 428; Butcher v. Dutcher, 3gWis. 652; Freeman v. Car- penter, 17 Wis. 130; Hookers. Greene, 50 Wis. 271; Brown County v. Van Stralen, 45 Wis. 675; Christian v. Will- iams, in Mo. 430; Cohn v. Lehman, 93 Mo. 574; Byler z/. Jones, 79 Mo. 261; Mclntire v. Calhoun, 27 Mo. App. 513; Little v. Harrington, 71 Mo. 390. Thompson v. Greenwood, 28 Ind. 327, overruling a number of earlier cases. But compare Moore v. Sargent, 112 Ind. 484; Midland R. Co. v. Steven- son, 6 Ind. App. 207; Stone v. Miller, 7 Barb. (N. Y.) 368; King v. Vander- bilt, 7 How. Pr. (N. Y. Supreme Ct.) 385; Van Buskirk v. Roberts, 14 How. Pr. (N. Y. Supreme Ct.)6i; Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551; Gossling v. Broach, i Hilt. (N. Y.)49- If a defendant pleads in abatement only, and issue is joined thereon, this is a waiver of a plea in bar. Bond v. Wagner, 28 Ind. 462; Thompson v. Greenwood, 28 Ind. 327. See Wright v. Bundy, n Ind. 398. An answer in the nature of a plea in abatement should be pleaded sepa- rately and disposed of before an an- swer to the merits is considered. Hop- wood -u. Patterson, 2 Oregon 50. Pleading matter in abatement with matter in bar waives the matter in abatement. Cannon v. McManus, 17 Mo. 345; Bourgoinz/. Wheaton, 30 Mo. 215; Fugate v. Glasscock, 7 Mo. 577; Hatryz'. Shuman, 13 Mo. 547; Fordyce v. Hathorn, 57 Mo. 120; Rippstein v. St. Louis Mut. L. Ins. Co., 57 Mo. 86; Moody v. Deutsch, 85 Mo. 237. A plea in abatement to an attach- ment for rent alleged, among other things, that all the said rent had been fully paid. Held, that the abatement was waived and that the plea was a plea in bar. Houghland v. Dent, 52 Mo. App. 237. See also article ABATEMENT IN PLEADING. 1. Arkansas. Mcllroy v, Buckner 35 Ark. 555. California. Billings v. Drew, 52 Cal. 565; Buhne v. Corbett, 43 Cal. 264. Contra. Klink v. Cohen, 13 Cal. 623; Hensley v. Tartar, 14 Cal. 509; Blum v. Robertson, 24 Cal. 146. In ejectment the defendant may in one defense deny his possession, and in another defense admit it, and a mo- tion to strike out one of these defenses will be overruled. Buhne v. Corbett, 43 Cal. 264. In an action of ejectment, where the defendants in their sworn answer de- nied being in possession, though in another defense, separately pleaded, they admitted possession; and on the trial the plaintiff, relying on the an- swer to show possession, offered no evidence to show the possession of de- fendants, held, that a nonsuit for fail- ure to show possession in defendants was correct. Buhne v. Corbett, 43 Cal. 264. An amended answer contradicting the original answer is not a nullity. Livermore v. Webb, 56 Cal. 489. But where an amended answer is complete in itself, and is inconsistent with the original, the two cannot stand together. Kuhland v. Sedgwick, 17 Cal. 123. In the case of Bell v. Brown, 22 Cal. 671, it was held that if a fact which is directly averred in one part of a veri- fied pleading is directly denied in an- other part, the party verifying it is guilty of perjury, and on the trial that averment which bears most strongly against the pleader will be taken as true. But it has also been held that, if the answer contains several defenses sep- arately stated, an admission made in one answer, for the purpose of plead- ing a separate defense, does not de- stroy :he effect of a denial, in another answer, of the matter thus admitted. Siter v. Jewett, 33 Cal. 93. See Will- son v. Cleaveland, 30 Cal. 192. But even if the rule prohibits incon- sistent defenses, which is doubtful, 855 Joinder of ANSWERS IN CODE PLEADING. Defenses. 5. What Defenses are Inconsistent introductory. Two prominent elements intended in the Code system of pleading are, that false- hoods should not be put upon the record, and that the pleadings should disclose the facts relied on in support of or defense against the action. 1 Therefore the rule is general, outside of the states enumerated in the note to the preceding paragraph, that inconsistent defenses cannot be set up. 8 still, if inconsistent defenses be set up, the defect must be reached by mo- tion to strike out, or in some cases by demurrer. And if no objection be taken to the answer on this ground, defendant on the trial may rely on any of his defenses, as under the old system. Klink v. Cohen, 13 Cal. 623; Uridias v. Morrell, 25 Cal. 31. Judgment on Pleadings. Inconsist- ent defenses do not entitle plaintiff to judgment on the pleadings. Botto v. Vandament, 67 Cal. 332; Amador County -v. Butterfield, 51 Cal. 526; Mudd v. Thompson, 34 Cal. 39; Siter v. Jewett, 33 Cal. 93. Colorado. People v. Lothrop, 3 Colo. 428; Duffield v. Denver, etc., R. Co. (Colo. App., 1894), 36 Pac. Rep. 622; Hummel v. Moore, 25 Fed. Rep. 380. In an action on a judgment, nul tiel record and accord and satisfaction may both be set up. Tucker v. Edwards, 7 Colo. 209. Indiana. Weston v. Lumley, 33 Ind. 486. See Wheeler v. Robb, i Blackf. (Ind.) 330; Ricket v. Stanley, 6 Blackf. (Ind.) 169; Arnolds. Sturges, 5 Blackf. (Ind.) 256, cited in 33 Ind. 489. The statute authorizes the defend- ant to plead as many pleas as he thinks proper, and they must be considered independent of each other. Wheeler u. Robb, I Blackf. (Ind.) 330; approved in Weston v. Lumley, 33 Ind. 489. Iowa. Morgan v. Hawkeye Ins. Co., 37 Iowa 359; Grash v. Sater, 6 Iowa 302; Shannon z>. Pearson, 10 Iowa 588. An admission in one defense made necessary by the nature of that de- fense is not to be construed as affect- ing a different defense inconsistent with such admission. Barr v. Hach, 46 Iowa 308; Heinricks v. Terrell, 65 Iowa 25; Herzman v. Oberfelder, 54 Iowa 83; Tabler v. Callanan, 49 Iowa 362; Treadway v. Sioux City, etc., R. Co., 40 Iowa 526; Quigley v. Merritt, II Iowa 147. But contradictory defenses should not be pleaded in the same division. Morgan v. Hawkeye Ins. Co., 37 Iowa 359- Although a party may plead incon- sistent defenses, he cannot claim prop- erty under two inconsistent rights at the same time. Crawford v. Nolan, 70 Iowa 97. And a defendant cannot, while de- nying a fact essential to plaintiff's re- covery, base a claim for affirmative relief on the same fact. Baird v. Mor- ford, 29 Iowa 531. New York. It is doubtful if incon- sistent defenses may be stricken out. Woods v. Reiss, 78 Hun (N. Y.) 80; Societa Italiana v. Sulzer, 138 N. Y. 472; Goodwin v. Wertheimer, 99 N. Y. 149; Bruce v. Burr, 67 N. Y. 240; Smith v. Wells, 20 How. Pr. (N. Y. Supreme Ct.) 158; Stiles v. Comstock, 9 How. Pr. (N. Y. Supreme Ct.) 48. A defendant may set up as many defenses as he may have, whether in- consistent or not. Societa Italiana v. Sulzer, 138 N. Y. 468. See other cases under other paragraphs of this sec- tion. North Carolina. Reed v. Reed, 93 N. Car. 465; Whedbee v. Reddick, 79 N. Car. 521; Summer v. Shipman, 65 N. Car. 623; Ten Broeck v. Orchard, 79 N. Car. 518. South Dakota. Stebbins v. Lardner, 2 S. Dak. 127; Lawrence v. Peck (S. Dak., 1893), 54 N. W 7 . Rep. 808; Green v. Hughitt School Tp. (S. Dak., 1894), 59 N. W. Rep. 224. Texas. St. Louis, etc., R. Co. v. Whitley, 77 Tex. 126; Ft. Worth, etc., R. Co. v. McAnulty (Tex. Civ. App., 1894,) 26 S. W. Rep. 414; Fowler v. Davenport, 21 Tex. 626; Duncan v. Mayette, 25 Tex. 245; Express Print- ing Co. v. Copeland, 64 Tex. 354; Wei- den v. Texas Continental Meat Co., 65 Tex. 487; Hillebrant v. Booth, 7 Tex. 499. But each plea must be consistent in its own averments. Hillebrant v. Booth, 7 Tex. 499. Wyoming. Lake Shore, etc., R. Co. v. Warren, 3 Wyoming 135. 1. Bush v. Prosser, n N. Y. 347. 2. Burnham v. Call, 2 Utah 433; Bell v. Campbell (Mo., 1894), 25 S. W. 856 Joinder of ANSWERS IN CODE PLEADING. Defenses. A Question of Fact. But the consistency in defenses required by the Code is one of fact merely. Two or more defenses are held to be inconsistent only where the proof of one necessarily dis- proves, the other. But the facts should be so set out in the an- swer that both defenses may be true. 1 What Defenses May Be Pleaded with a General Denial. A denial and affir- mative defenses may both be set up. 2 A general denial is not inconsistent with a special plea of payment. 3 And a general de- nial of the execution of a contract is not inconsistent with a plea of want of consideration. 4 In an action on a note the defendant may set up a denial of the making of the note, and also that, if his signature is genuine, it was obtained by fraud. 5 Rep. 359 ; Brown v. Bowen, 90 Mo. 190; McClanahan v. West, 100 Mo. 322. See cases under next paragraph. 1. Nelson v. Brodhack, 44 Mo. 596, 100 Am. Dec. 328; Cohn v. Lehman, 93 Mo. 574; Led.better v. Ledbetter, 88 Mo. 60; State v. Rogers, 79 Mo. 283; McAdow v. Ross, 53 Mo. 199; McCor- mickz'. Kaye, 41 Mo. App. 263; Mcln- tire v. Calhoun, 27 Mo. App. 513. The inconsistent defenses which are allowed to be pleaded in a verified an- swer are not such as require in their statement a direct contradiction of any fact elsewhere directly averred. They are those in which the inconsistency arises rather by implication of law, be- ing in the nature of pleas of confession and avoidance as contradistinguished from denials, the party impliedly or hypothetically admitting, for the pur- pose of that particular defense, a fact which he notwithstanding insists does not in truth exist. Bell v. Brown, 22 Cal. 671. The Code contains no limitation upon the provision that the defendant may set forth as many grounds of de- fense as he may have, except the im- plied limitation contained in the re- quirement that the pleadings shall be verified by oath. Citizens' Bank v. Closson, 29 Ohio St. 78. "Under our system of pleading a defendant may set up as many de- fenses as he may have, the only limit to this right being that they must not be inconsistent. Separate and distinct defenses are consistent when both may be true, and are held inconsistent when the proof of one necessarily disproves the other." Per Collins, J., in Steener son v. Waterbury, 52 Minn. 211. And see Blodgett v. McMurtry (Neb., 1894), 57 N. W. Rep. 985 ; Pavey v. Pavey, 30 Ohio St. 600. 2. Woods v. Reiss, 78 Hun (N. Y.) 78. Contra, Adams v. Trigg, 37 Mo. 141; Kinman v. Cannefax, 34 Mo. 147; Coble v. McDaniel, 33 Mo. 363; Atte- berry v. Powell, 29 Mo. 429, 77 Am. Dec. 579; McCord v. Doniphan Branch R. Co., 21 Mo. App. 92; Darrett v. Donnelly, 38 Mo. 492. 3. Steenerson v. Waterbury, 52 Minn. 211; Doran v. Dinsmore, 20 How. Pr. (N. Y. Supreme Ct.) 504. Contra, Sheppard v, Starrett, 35 Mo. 367- In a suit on a note, the plea of pay- ment is not inconsistent with a denial of the plaintiff's ownership, nor is it in any sense an admission thereof. Cavitt v. Thorp, 30 Mo. App. 131. A defendant, when sued to recover the value of services rendered, may deny that the services were rendered, and also allege that, if rendered, their value was less than the amount claimed. Weaver v. Carnahan, 37 Ohio St. 363. 4. Barnes v. Scott, 29 Fla. 285; Mul- liken v. Mulliken (Ky., 1894), 25 S. W. Rep. 598; Pavey v. Pavey, 30 Ohio St. 600. In an action on a note, the defenses non est factum, want of consideration, and payment are not inconsistent. Patrick v. Boonville Gas Light Co., 17 Mo. App. 462. 5. Citizens' Bank v. Closson, 29 Ohio St. 78. But in a suit on a contract a denial of the making of the contract, and an averment that the defendants were in- duced to make the contract by the false and fraudulent representations of the plaintiffs, are inconsistent de- 857 Joinder of ANSWE&S IN CODE PLEADING. Defenses. The pleas of a general denial and of a general release are not inconsistent. 1 A general denial and the statute of limitations are not legally inconsistent with each other. 2 In an action for assault and battery, a positive denial of the trespass is not waived by a subsequent plea of justification in the same answer. 3 In an action for slander or libel a plea of the general issue and pleas of justification are not inconsistent. 4 In a real action the defendant may plead that he is the owner in fee, and also that the ownership is in some person other than himself or the plaintiff. 5 fenses. The general denial should be struck out. Marx v. Gross, 58 N. Y. Super. Ct. 221; Mclntire v. Wiegand (City Ct.), 10 N. Y. Supp. 3. 1. Kellogg v. Baker, 15 Abb. Pr. (N. Y. Super. Ct.) 286; Nelson v. Brod- hack, 44 Mo. 596, 100 Am. Dec. 328. 2. Lawrence v. Peck (S. Dak., 1893), 54 N. W. Rep. 808; May v. Burk, 80 Mo. 675; Schuchman v . Heath, 38 Mo. App. 280; Ostrom -v. Bixby, 9 How. Pr. (N. Y. Supreme Ct.) 57- 3. Rhine v. Montgomery, 50 Mo. 566; Hollenbeck v. Clow, 9 How. Pr. (N. Y. Supreme Ct.) 289; Lansingh v. Parker, 9 How. Pr. (N. Y. Supreme Ct.) 288. See Johnson v. Gibson, 23 N. Y. Wkly. Dig. 433. Three defenses, amounting in sub- stance to pleas of "not guilty," "son assault demesne," and " molliter manus imposuit, are consistent both at com- mon law and under the Code. Rhine v. Montgomery, 50 Mo. 566. And a general denial, justification, and the statute of limitations are not inconsistent. McCormick v. Kaye, 41 Mo. App. 263. Contra. A general denial and justi- fication are inconsistent, and one should be struck out. Schneider v. Schultz, 4 Sandf. (N. Y.) 684; Roe v. Rogers, 8 How. Pr. (N. Y. Supreme Ct.)356. 4. Murphy v. Carter, I Utah 17; Wood v. Hilbish, 23 Mo. App. 390; Hollenbeck v. Clow, 9 How. Pr. (N. Y. Supreme Ct.) 289; Butler v. Went- worth, 9 How. Pr. (N. Y. Supreme Ct.) 282; Ormsby v. Douglas, 5 Duer (N. Y. ) 665. Contra. Porter v. McCreedy, I Code Rep. N. S. (N. Y.) 88; Sayles v. Wooden, 6 How. Pr. (N. Y. Su- preme Ct.) 84; Anibal v. Hunter, 6 How. Pr. (N. Y. Supreme Ct.) 255; Ormsby v. Douglass, 2 Abb. Pr. (N. Y. Super. Ct.) 407 ; Atteberry v. Powell, 29 Mo. 429, 77 Am. Dec. 579. In an action for slander a general denial is not inconsistent with a de- fense that the plaintiff was guilty of the misconduct which the words im- port. Ormsby v. Douglas, 5 Duer (N. Y.)665. Mitigating Circumstances. In an action for libel or slander mitigating circumstances may be pleaded in con- nection with a general denial, and with or without a plea of justification. Bush v. Prosser, n N. Y. 347; Bisbey v. Shaw, 12 N. Y. 67 ; Dolevin v. Wilder, 7 Robt. (N. Y.) 319. Contra, Meyer v. Schultz, 4 Sandf. (N. Y.) 664. 5. Moore v. Willamette Transp., etc., Co., 7 Oregon 356. In an action of ejectment by heirs against a purchaser at an adminis- trator's sale, where the plaintiffs rely on an informality in the sale to defeat it, the defense that the heirs have not refunded the purchase-money is not inconsistent with the plea of the stat- ute of limitations. Schaefer v. Causey, 8 Mo. App. 142. In Kyser v. Cannon, 29 Ohio St. 359, it was held that where in eject- ment the defendant denied the plain- tiff's title and right of possession, and also pleaded the statute of limitations, the second defense was surplusage. See also Rhodes v. Gunn, 35 Ohio St. 387. But in an action of ejectment the defendant cannot deny the title of the grantor of the plaintiff and at the same time claim as purchaser under the same grantor ; and he may be compelled to elect. Fugate v. Pierce, 49 Mo. 441. In an action of ejectment an equit- able defense seeking affirmative reliel 858 Joinder of ANSWERS IN CODE PLEADING. Defenses. And in general any affirmative defense may be joined with a denial, provided it is possible for both defenses to be true. 1 The Statute of Limitations Joined with Other Affirmative Defenses. The plea of the statute of limitations, besides being allowed to be joined with a denial, may be joined with other affirmative defenses. 2 Fraud and Breach of Warranty. Fraud in the making of a contract, and also a breach of warranty contained in the same contract, are not inconsistent defenses. 3 All Affirmative Defenses May Be Joined. In analogy to the rule that an affirmative defense may be joined with a denial when both may be true, two affirmative defenses may be joined when the proof of one does not disprove the other. 4 is inconsistent with a denial. Coch- ran v. Webb, 4 Sandf. (N.Y.)653. See Dewey v. Hoag, 15 Barb. (N. Y.) 365. 1. Mott v. Burnett, 2 E. D. Smith (N. Y.) 50, infancy and a general de- nial; Otis v. Ross, 8 How. Pr. (N. Y. Supreme Ct.)ig3; Anonymous, i Code Rep. (N. Y.) 134; Arnold v. Dimon, 4 Sandf. (N. Y.) 680; Freeman v. Frank, 10 Abb. Pr. (N. Y. Supreme Ct.) 370; Lewis v. Acker, n How. Pr. (N. Y. Supreme Ct. 163. In an action for false representa- tions a general denial and also a plea that the representations are true are not inconsistent. Otis v. Ross, 8 How. Pr. (N. Y. Supreme Ct.) 193. And a plea of general denial and one of ratification are not inconsistent. Moore v. Macon Sav. Bank, 22 Mo. App. 684. In an action to recover possession of personal property the defendant may answer by a general denial and also set up a justification. Hackleyz/. Ogmun, 10 How. Pr. (N. Y. Supreme Ct. ) 45. See Townsend v. Platt, 3 Abb. Pr. (N. Y. C. PI.) 325. And a plea of estoppel in pais may be joined with a general denial. Blod- gett v. McMurtry (Neb., 1894), 57 N. W. Rep. 985. See also Grady v. American Cent. Ins. Co., 60 Mo. 117; McAdow v. Ross, 53 Mo. 199; Spencer v. Tooker, 12 Abb. Pr. (N. Y. Supreme Ct.) 353; Petrakion v. Arbelly, 23 Civ. Pro. Rep. (N. Y. C. P.) 184; Arnold v. Dimon, 4 Sandf. (N. Y.) 680; Radde v. Ruckgaber, 3 Duer (N. Y.) 684; Livingston v. Harrison, 2 E. D. Smith (N. Y.) 197, holding that denial and tender are inconsistent. 2. It may be pleaded with accord and satisfaction, Conway v. Wharton, 13 Minn. 158; and with a plea that the note sued on was given for the accom- modation of plaintiff, Ostrom v. Bixby, 9 How. Pr. (N. Y. Supreme Ct.) 57. But see Adair v. Adair, 78 Mo. 630, where, in a suit to enforce a vendor's lien it was held that a plea of payment waived a plea of the statute of limita- tions. The two defenses a bar of the stat- ute of limitations to an action for a balance struck between partners, and a claim by defendant of a balance due on the same account are inconsistent. Auld v. Butcher, 2 Kan. 136. 3. Kelly v. Bernheimer, 3 Thomp. & C. (N. Y.) 140, where the defendant was allowed to set up a breach of war- ranty and also fraud in the representa- tions as to the quality of the grain sold. The defense of a rescission on the ground of fraud or mistake may be joined with one of breach of warranty. Bruce v. Burr, 67 N. Y. 237. 4. In an action of trespass the de- fense that plaintiff is not the owner is not inconsistent with the defense of license. Booth v. Sherwood, 12 Minn. 426. Usury, extension of time to the prin- cipal debtor, and payment are con- sistent defenses. Shed v. Augustine, 14 Kan. 282. But usury and tender are incon- sistent, and the plea of tender should be stricken out. Breunich v. Wesel- man, 100 N. Y. 609. And see Kline v. Hanke (Mont., 1894), 36 Pac. Rep. 454; Luckett v. Will- iamson, 37 Mo. 388; Grier Commission Co. v. Dockstader, 47 Mo. App. 42; Hooven, etc., Co. v. National Cordage Co., 27 Wkly. L. Bull. (Ohio) 18; Mc- Mullen v. Rafferty, 89 N. Y. 456; Brown v. Porter, 7 Wash. 327, where the de- 859 Joint and AA T SWEKS IN CODE PLEADING. Several. 6. Remedies for Inconsistency Election. Where the defenses are inconsistent, the defendant maybe required to elect which he will rely on. 1 Bound by Allegations Against Him. Some authorities hold that where allegations in different defenses are inconsistent with each other, the defendant is bound by those against him. 2 Waiver. If inconsistent defenses are set up, advantage of the irregularity must be taken by motion or demurrer, otherwise the defect is waived, and upon the trial the party may rely upon such defenses. 3 XV. JOINT AND SEVEEAL ANSWERS 1. The Right to Join in an Answer Optional to Join. There is no limit to the right of proper parties defendant to join in an answer, the averments of which they are able and willing to verify in accordance with the require- ments of the Code. 4 fenses were held consistent. Also see Bell v. Campbell (Mo., 1894), 25 S. W. Rep. 359, and Smith v. Culligan, 74 Mo. 388, where the defenses were held inconsistent. 1. Shellenbarger v. Biser, 5 Neb. 195; Cook v. Finch, 19 Minn. 407; Con- way v. Wharton, 13 Minn. 160; Foster v. Henry, 5 Alb. L. J. (N. Y.)i73; Os- trom v. Bixby, 9 How. Pr. (N. Y. Su- preme Ct.) 57: Hallenbeck v. Clow, 9 How. Pr. (N. Y. Supreme Ct.) 289; Lansingh v. Parker, 9 How. Pr. (N. Y. Supreme Ct.) 288; Smith v. Wells, 20 How. Pr. (N. Y. Supreme Ct.) 158. Where the defendants set up in their answer that the contract sued on was "revoked, annulled, and modified," they were compelled to elect upon which defense they would stand, the annulling of a contract being incon- sistent with its modification. Cook v. Finch, 19 Minn. 407. And specific denials after a general denial are improper, and defendant may be required to elect. School Dist. v. Holmes, 16 Neb. 486. The statute does not authorize the striking out of a defense for incon- sistency. Conway v. Wharton, 13 Minn. 158. 2. Butler v. Kaulback, 8 Kan. 671; Bierer v. Fretz, 32 Kan. 330; Cole v. Woodson, 32 Kan. 272; Wright v. Bacheller, i6Kan. 259; Ft. Scott Coal, etc., Co. v. Sweeney, 15 Kan. 244; Yandle v. Crane, 13 Kan. 344; Mclntire v. Wiegand, 24 Abb. N. Cas. (N. Y. City Ct.) 312; McLaughlin v. Alex- ander, 2 S. Dak. 227. Where the allegations of a special de- fense are inconsistent with a general denial, they limit and control the de- nial to the extent that they are incon- sistent with it. Queen Ins. Co. v. Hud- nut Co. (Ind. App., 1893), 35 N. E. Rep. 397; Evansville, etc., R. Co. v. Crist, 116 Ind. 446, 9 Am. St. Rep. 865; War- britton v. Demorett, 129 Ind. 346; Moyer v. Ft. Wayne, etc., R. Co., 132 Ind. 88; Derby v. Gallup, 5 Minn. 119; Wiley -v. Keokuk, 6 Kan. 94; Barnum v. Kennedy, 21 Kan. 181. 3. Conway v. Clinton, i Utah 215. And it is too late after verdict to ob- ject that the defenses are inconsistent. Schaefer v. Causey, 8 Mo. App. 142. Compare Merchants' Nat. Bank v. Mc- Naughton, i Abb. N. Cas. (N. Y.) 293; Hamburger v. Baker, 35 Hun (N. Y. Supreme Ct.) 456. 4. Union Bank v. Bell, 14 Ohio St. 211. Duty of Husband to Put in Joint An- swer. In an action relating to real es- tate, against husband and wife, where process is served only on the husband, he is bound, except where the estate is the separate property of the wife, to enter a joint appearance and put in a joint answer for himself and wife. Eckerson v. Vollmer, n How. Pr. (N. Y. Supreme Ct.) 42. A Several Defense. Where a defend- ant has a defense applicable to himself alone, and not to the other defendants, he must plead separately. Thus, in an action for the partition of real es- tate, the several defendants answered jointly, alleging title in one of them only, under a certain will, made part of the answer by copy. Held, on de- murrer, that the will was not the foundation of the defense, but only 860 Joint and ANSWERS IN CODE PLEADING. Several. 2. How a Joint Answer is Construed. A joint answer is construed as a single indivisible one ; it must be good as to all. When it is insufficient as to one defendant, it is bad as to all. 1 3. The Right to Interpose a Separate Answer. Every defendant has a right to put in his separate answer. One defendant is not bound by the answer of a codefendant. 2 The right to interpose a separate answer is peculiarly applicable where one defendant has an interest separate from that of the other. 3 4. The Defense in One Answer Enuring to All. The rule is that a defendant answering cannot assert the rights of one who does not answer. 4 And if the defense pleaded in one answer is a sev- eral one, it will not enure to the benefit of the others. 5 But if the defense is joint in its nature, and goes to the validity of the evidence, and that the answer, as it showed title in only one of the defend- ants, was insufficient as a joint answer. Black v. Richards, 95 Ind. 184. 1. Bryan v. Wilson, 27 Ala. 208; Wittick v. Traun, 27 Ala. 562, 62 Am. Dec. 778; Gibson v. Marquis, 29 Ala. 668; Livingston v. Pippin, 31 Ala. 542; Rodgers v. Brazeale, 34 Ala. 512; Morton v. Morton, 10 Iowa 58; Brown- field -v. Weicht, 9 Ind. 394; Ward v. Bennett, 20 Ind. 440. See Poulk v. Slocum, 3 Blackf. (Ind.) 421. 2. Mobley v. Dubuque Gas Light, etc., Co., ii Iowa 71. The rule that each defendant has a right to his separate answer obtains although one defendant may plead such a defense as enures to the bene- fit of all. It is error to sustain a de- murrer to one answer because the same defense can be interposed under the answer of a codefendant. Moyer v. Brand, 102 Ind. 306. Where two persons are sued as partners, and service is had on only one of them, he cannot by joint an- swer bind the other alleged partner if no partnership actually exists. Nixon v. Downey, 42 Iowa 78. And the failure of one of several partners sued upon a partnership claim to set up a defense will not de- prive another of the right to do so. Brayley v. Goff, 40 Iowa 76. 3. Husband and Wife. In an action against husband and wife, where the husband is joined in right of his wife, it is not now necessary, as it was undr-r the former practice, that appli- cation be made to the court for the wife to answer separately. She may answer separately as of right. Harlay v. Ritter, 18 How. Pr. (N. Y. C. PL) 147. Where the wife has an interest sepa- rate from that of her husband and they answer jointly, the answer should be verified by both. Youngs v. Seely, 12 How. Pr. (N. Y. Supreme Ct.) 395. A married woman sued with her husband in respect to her separate estate may put in a separate demurrer. Arnold v. Ringold, 16 How. Pr. (N. Y. Supreme Ct.) 158. Without Consideration as to One Defend- ant. One of the joint makers of a promissory note can make the defense that as to him such note is without consideration. Moyer v. Brand, 102 Ind. 301. But a separate answer which alleges that the note was given by the defend- ant to the plaintiff "without any con- sideration of any kind to this defend- ant," is bad on demurrer. It is not necessary that the consideration for the note should pass to the defendant. Bingham v. Kimball, 33 Ind. 184; Anderson v. Meeker, 31 Ind. 245. 4. Cathcart v. Peck, n Minn. 45. But where evidence to support a de- fense pleaded by one defendant alone is offered and received, generally, on behalf of all the defendants without objection, no objection thereto can be raised on appeal. Devyr v. Schaefer, 55 N. Y. 446. 5. If the defense set up by the party taking the second trial is several only, leaving a valid cause of action against the other defendants, the liability of those not taking a second trial, as fixed by the findings on the first trial, will remain unaffected by such second trial. Sprague v. Childs, 16 Ohio St. 108. 861 Joint and ANSWERS IN CODE PLEADING. Several. cause of action, it will, to the extent it may be established, enure to the benefit of the other defendants. 1 5. Adoption of an Answer. Closely allied with the subject of joint answers is that of the adoption of answers. A defendant subsequently brought in by substitution may adopt the answer of the one for whom he is substituted. 3 1. Sprague v. Childs, 16 Ohio St. 108; Cooke v. Altvater, 21 Ohio St. 628. If a separate answer by one of sev- eral defendants goes to the merits of the case, and is such that the proof of it will defeat a recovery, it will enure to the benefit of the other defendants. Moyer v. Brand, 102 Ind. 301; Suther- lin v. Mullis, 17 Ind. 19; Stapp v. Davis, 78 Ind. 128; Kirkpatrick v. Armstrong, 79 Ind. 384. Thus, in an action against several for a joint and several tort, if the an- swer of one shows that plaintiff could have no cause of action against any of them, the others, though they do not plead it, will have the benefit of a finding on it against the plaintiff. Williams v. McGrade, 13 Minn. 40. A separate defense, that the consid- eration of the note sued on was illegal interest, enures to the benefit of all the defendants. Miller v. Longacre, 26 Ohio St. 291. 2. Louisville etc., R. Co. v. Utz, 133 Ind. 265, where a defendant corpora- tion, after suit, consolidated with other corporations, and the consoli- dated corporation was made a party, and it was held that the answer of the original corporation was the an- swer of the consolidated one. See also Beel v. Corbin (Ind., 1894), 36 N. E. Rep. 23; Alliance Milling Co. v. Eaton (Tex. Civ. App., 1893), 23 S. W. Rep. 455. The subject of the adoption of pleadings is closely allied with the cognate subjects of PARTIES and AMENDMENTS. See those articles. 862 ANSWERS IN EQUITY PLEADING, By W. A. MARTIN and S. R. PERRY. I. DEFINITION, 865. II FOBM OF ANSWEES, 865. 1. Parties, 865. 2. Frame of Answer, 865. 3. Oat6,867. a. Necessity of Oath, 867. b. How Administered, 867. c. Before Whom Taken, 868. 4. Signature, 868. 5. Jurat, 869. III. NATTJBE OF ANSWEE, 870. IV. REQUIBEMENTS OF ANSWEE, 873. 1. Must be Full, 873. 2. Must be Certain, 875. 3. Must be on Knowledge, Information, Remembrance, or Belief, 876. 4. Must Not Contain Inconsistent Defenses, 878. 5. Must State Facts, 878. V. DEFENSES TAKEN BY ANSWEB, 878. 1. Usury, 878. 2. Statute of Limitations, 880. 3. Laches, 880. 4. Innocent Purchase, 880. 5. Undue Influence, 882. 6. Resjudicata, 882. 7. Statute of Frauds, 882. 8. Fraud, 883. 9. Want of Jurisdiction, 883. 10. 6>M. Van Buren County, 69 Mich. 593. This rule does not deprive a party of any of the substantial rights secured to him by a resort to a cross-bill, but preserves to him all the benefits to be derived from a cross-bill by stating the substance thereof in his answer; and the complainant is entitled to make defense to matter so set up in the answer as fully as he could have done before the rule was made. Hack- ley -v. Mack, 60 Mich. 59. Though the answer contains no specific prayer for relief, but simply 87 prays to have the bill dismissed, if the facts shown clearly entitle the defend- ant to relief, the court will treat the prayer as amended. Cooley v. Harris, 92 Mich. 135. Mississippi. In Mississippi defendant may make his answer a cross-bill against the complainant, or his code- fendant or codefendants, or all of them, and may introduce any new matter material to his defense, and require the same to be answered. So, also, he may require of the complain- ant or of any of the defendants a dis- covery of any matter material to his defense, and he shall have process thereon against the defendants to such cross-bill, and the like proceedings thereon as in other cross-bills. Ann. Code, 1892, 537. If defendant in his answer relies for any cause on the invalidity of an in- strument relied on by complainant for recovery, he cannot have the affirma- tive relief of cancellation unless he makes his answer a cross-bill. Bay v. Shrader, 50 Miss. 326 ; Weeks v. Thrasher, 52 Miss. 144. An answer seeking specific relief, but not made a cross-bill, will not en- title defendant to relief. Millsaps v. Pfeiffer, 44 Miss. 805; Arnold v. Mil- ler, 26 Miss. 152. But on a bill by one tenant in com- mon for partition, where a defendant by his answer set up a claim for con- tribution, from the other co-tenants, for expenditures by him for taxes and re- pairs on the common estate, it was held that the relief could be granted him, although he did not make his an- swer a cross-bill. Harrison v. Harri- son, 56 Miss. 174. Rhode Island. In Rhode Island no cross-bill is necessary in any suit in equity, but defendant may avail him- self of any matter in defense which Requirements ANSWERS IN EQUITY PLEADING. of Answer. IV. REQUIBEMENTS OF ANSWEB 1. Must be Full. Generally if defendant attempts to make defense by answer, he must answer fully all the statements and charges of the bill, with all their material circumstances, without any special interrogatories in the bill for that purpose. 1 would be open to him as a cross-bill by setting up such matter in his an- swer; and the court, on the hearing of the case, may make any decree, final or interlocutory, for or against either party, warranted by the merits of the case, that it could have made had such a cross-bill been filed. Pub. Sts. 1882, 507, 16. Tennessee. The defendant may, by proper allegations, file his answer as a cross-bill and require a discovery from the complainant ; in which case de- murrer or pleas may be filed, or other proceedings had upon the answer, as upon a cross-bill. M. & V. Code, 5066. Under this statute an answer, filed as a cross-bill, is on the same footing as a cross-bill, and is not limited to purposes of defense. Nichol v. Nichol, 4 Baxt. (Tenn.) 147. An answer filed as a cross-bill need not necessarily be a bill for discovery, specifically, but may well be based on any proper matters of equity growing out of the original bill or connected with it, on which the respondent would be entitled to affirmative relief on a cross-bill filed separately. Odom v. Owen, 2 Baxt. (Tenn.) 446. An answer filed as a cross-bill under the statute can only be treated as a cross-bill proper, and, being defen- sive, will go with the original bill. And the court cannot be required to notice original matter set up therein, at any rate if the original matter be a cause of action against the heir, when the original bill is by the personal representative of a decedent. Elliston v. Morrison, 3 Tenn. Ch. 280. West Virginia. Defendant may al- lege any new matter constituting a claim for affirmative relief against plaintiff or any delendant therein, in the same manner and with like effect as if the same had been alleged in a cross-bill filed by him therein; and if the plaintiff or defendant against whom such a relief is claimed desire to controvert the relief prayed for in the answer, he shall file a special reply in writing, denying such allegations of the said answer as he does not ad- mit to be true, and stating any facts constituting a defense thereto. But in case a defendant allege new matter in his answer upon which he relies, and prays affirmative relief, such de- fendant shall not file a cross-bill in the same cause except upon condition of striking from his answer all such mat- ter and prayer for affirmative relief as are contained in such cross-bill. Code, 785, S35- An answer alleging new matter, con- stituting a claim to affirmative relief in the suit, within the meaning of the statute, was intended simply to be al- lowed in lieu of a cross-bill in the cause as to such new matter, and not to make any other change in the prac- tice as to the pleading in courts of equity. Moore v. Wheeler, 10 W. Va. 35- An answer setting up affirmative matter and asking relief thereon will be bad on demurrer if the relief asked for is foreign to the original bill. Rust v. Rust, 17 W. Va. 901; McMul- len v. Eagan, 21 W. Va. 234. Any affirmative relief available in a cross-bill is available by an answer if properly pleaded under the statute. Middleton v. Selby, 19 W. Va. 167; Armstrong v. Wilson, 19 W. Va. 108. United States. Under Rev. Sts. U. S. 4918, providing for suits touching interfering patents, defendant may have affirmative relief without filing a cross-bill. Lockwood v. Cleaveland, 6 Fed. Rep. 721; American Clay Bird Co. v. Ligowski Clay Pigeon Co., 31 Fed. Rep. 466. 1. Bank of Utica v. Messereau, 7 Paige (N. Y.) 517, 49 Am. Dec. 189; Cuyler v. Bogert, 3 Paige (N. Y.) 186; Disosway v. Carroll, 3 Chan. Sent. (N. Y.) 57; Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205; Methodist Episcopal Church v. Jacques, i Johns. Ch. (N. Y.) 65; Mechanics' Bank v. Levy, 3 Paige (N. Y.) 606; Champlin v. Champ- lin, 2 Edw. Ch. (N. Y.) 362; Whitney v. Belden, i Edw. Ch. (N. Y.) 386; Davis v. Mapes, 2 Paige (N. Y.) 105; Miles -v. Miles, 27 N. H. 440; Salmon 873 Bequirements ANSWERS IN EQUITY PLEADING. of Answer. Exceptions. This rule is subject to several well-established ex- ceptions. Thus, all matters merely scandalous, impertinent, ir- relevant, or immaterial need not be answered. 1 Defendant need not answer anything which will subject him to any penalty or forfeiture. '* He need not divulge matters where such divulgence would involve a breach of professional confidence. 3 Nor need he discover the facts relating to his own title, but only those relating to plaintiff's title. 4 So also statutes and rules v. Clagett, 3 Bland. (Md.) 125; Neale v. Hagthrop, 3 Bland. (Md.) 551; Chappell v. Funk, 57 Md.46s; Harvey v. Lance, i Luz. Leg. Obs. (Pa.) 315; Parkinson v. Trousdale, 4 111. 367; Fulton County v. Mississippi, etc., R. Co., 21 111. 338; Hopkins v. Medley, 97 111. 402; Vreelandz'. New Jersey Stone Co., 25 N. J. Eq. 140; Hogencamp v. Ackerman, 10 N. J. Eq. 267; Brown v. Fuller, 13 N. J. Eq. 271; Cartwright v. Hateley, I Ves. Jr. 292; Shepherd v. Roberts, 3 Bro. C. C. 239; Story Eq. 'PI. doth ed.) 38, 846; Beach Mod. Eq. Pr. 334. See also Rev. Sts. 111. 1845, p. 96, 23; Ann. Code Miss. 1892, '533- Method of Compelling Full Answer. If the answer be in any respect eva- sive or insufficient, the plaintiff may except to it, and thus extract from his opponent a full and perfect answer. Beam Orders, 28, 179; King v. Maris- sal, 3 Atk. 192; Radford v. Wilson, 3 Atk. 815, Hepburn v. Durand, I Bro. C. C. 503; Deane v. Rastron, I Anst. 64; Prout v. Underwood, 2 Cox 135; Mountford v. Taylor, 6 Ves. 792; White z: Williams, 8 Ves. 193; Somer- vile v. Mackay, 16 Ves. 382; v. Harrison, 4 Madd. 252; Wharton v. Wharton, i Cond. Ch. Rep. 117. See fast, section EXCEPTIONS. 1. Story Eq. PI. (loth ed.) 846; Mitford Eq. PI. (by Jeremy) 367, note h; Wigram on Discovery (ist ed.) 195, 198; Agar v. Regents Canal Co., G. Coop. 212; Waldron v. Bayard, I Phila. (Pa.) 484; Utica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210; Wiswall v. Wandell, 3 Barb. Ch.(N. Y.) 312. See also Battersonz/. Ferguson, I Barb. (N. Y.) 490; Neale v. Hagthrop, 3 Bland (Md.) 551. But there are cases hold- ing that if defendant submits to answer, he is bound to answer every immaterial as well as material state- ment of the bill. Hogencamp v. Ack- erman, 10 N. J. Eq. 267; Brown v. Fuller, 13 N. J. Eq. 271. 2. Story Eq. PI. 846; Smith v. Read, i Atk. 526; Harrison v. South- cote, i Atk. 528; Bird v. Hardwicke, i Vern. no; Sharp v. Carter, 3 P. Wms. 375; Wrottesley z>.Bendish, 3 P. Wms. 236; Chancey v. Fenhoulet, 2 Ves. 265; Boteler v. Allington, 3 Atk. 453 ; Chauncey v. Tahourden, 2 Atk. 392; Fane v. Atlee, i Eq. Cas. Abr. 77, pi. 15; Uxbridge v. Staveland, I Ves. 56; Claridge v. Hoard, 14 Ves. 59; Patter- son -v. Patterson, i Hayw. (N. Car.) 168; Butler v. Catling, i Root (Conn.) 310; Higdon v. Heard, 14 Ga. 255; Atterbury v. Knox, 8 Dana (Ky.) 284; Leigh v. Everhart,4T. B. Mon. (Ky.) 379, 16 Am. Dec. 160; Adams v. Porter, i Cush.(Mass.) 170; Taylor v. Bruen, 2 Barb. Ch. (N. Y.) 302; Union Bank v. Barker, 3 Barb. Ch. (N. Y.) 358; Leg- gett v. Postley, 2 Paige (N. Y.) 599; Livingston v Harris, 3 Paige (N. Y.) 528; Mclntyre v. Mancius, 16 Johns. N.Y.) 592; Skinner v. Judson, 8 Conn. 527, 21 Am. Dec. 691; Northrop v. Hatch, 6 Conn. 361; U. S. Bank v. Biddle, 2 Pars. Eq. Cas. (Pa.) 31. Protection by Statute Effect. But defendant must answer as to a fraud charged in the bill, though it amounts to an indictable offense, where it is provided by statute that the answer shall not be used as evidence against him. Schott v. Bragg, i T. & H. Pr. (Pa.) 96. Penalty Barred by Statute of Limita- tions or Waived. If the forfeiture or penalty be barred by the statute cf limitations, defendant is no longer protected from answering fully. Skin- ner v. Judson, 8 Conn. 528, 21 Am. Dec. 691. Contra, Northrop v. Hatch, 6 Conn. 361. 3. Story Eq. PI. (loth ed.) 846; Wigram on Disc, (ist ed.) 195, 196; Beach Mod. Eq. Pr. 335; Stratford v. Hogan, 2 Ball. & B. 164; Jones v. Pugh, 12 Sim. 470; Greenough v. Gaskell, i Myl. & K. 98. 4. Story Eq. PI. (loth ed.) g 846; 874 Bequirements ANSWERS IN EQUITY PLEADING. of Answer. of court have modified the rule in some jurisdictions. 1 2. Must be Certain. The answer should be certain as far as practicable; and to so much of the bill as it is necessary to answer defendant must speak directly, without evasion, and not by way of negative pregnant. He must not answer the charges merely literally, but must confess or traverse the substance of each posi- tively and with certainty; particular precise charges must be answered particularly, not in a general manner. 5 * 268; Beach Mod. Hare on Disc. 266, Eq. PI. 335- Other Exceptions. So also a party in whose favor a judgment has been en- tered up is not bound to answer any inquiries in a bill filed by a subse- quent purchaser which go to impeach the consideration or validity of the judgment. French v. Shotwell, 6 Johns. Ch. (N. Y.) 235. On a bill against bankrupt's assign- ees for an accounting and to enjoin proceeding at law, an answer by one of the defendants setting forth that his name was used in the action at law without his authority, and that his actions as assignee were in refer- ence to matters not connected with the subject of the bill therein set forth, was held good though he had not answered each interrogatory. Jones v. Wiggins, 2 Y. & J. 385. A defendant may answer in part, and by his answer state grounds why he should not be compelled to make further answer. Hunt v. Gookin, 6 Vt. 462. See also M. E. Church v. Jacques, I Johns. Ch. (N. Y.) 65; Cuy- ler v. Bogert, 3 Paige (N. Y.) 186; Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205; Desplaces v. Goris, i Edw. Ch. (N. Y.) 350; Bentley v. Cleaveland, 22 Ala. 814. On a bill for an accounting, where it does not appear on the face of the bill that the account will be necessary in establishing complainant's right thereto, but it appears merely that the account is that which must ulti- mately be rendered in fulfilment of an obligation sought to be enforced, the account need not be set out in the answer, where resort to answer is preferable to plea or demurrer in re- sisting the complainant's alleged right to account; but if the alleged right may be resisted by plea or demurrer, and defendant chooses to answer, he must answer setting out the account fully. Pace v. Bartles, 45 N. J. Eq. 371. See also Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205; French v. Rainey, 2 Tenn. Ch. 640; Armstrong v. Crocker, 10 Gray (Mass.) 269. 1. In Alabama a defendant in his answer may protect himself from making a full answer to the allega- tions of the bill. Code 1886, 3440. United States Equity Rule 39 provides as follows : " The rule that if a de- fendant submits to answer he shall answer fully to all the matters of the bill shall no longer apply in cases where he might by plea protect him- self from such answer and discovery. And the defendant shall be entitled in all cases by answer to insist upon all matters of defense (not being mat- ters of abatement, or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar, and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or de- fense. Thus, for example, a bona-fide purchaser for a valuable considera- tion without notice may set up that defense by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compella- ble to make any further answer or discovery of his title than he would be in any answer in support of such a plea." Equity Rule 44 provides that "a defendant shall be at liberty, by answer, to decline answering any in- terrogatory, or part of an interroga- tory, from answering which he might have protected himself by demurrer; and he shall be at liberty so to decline notwithstanding he shall answer other parts of the bill from which he might have protected himself by demurrer." In Maryland Chancery Rule 23 is an exact copy of United States Eq. Rule 39, supra. 2. Boh. Cur. Can. in; Wy. P. Reg. 13; I Har. Ch. Pr. 303; Mitf. Eq. PL 875 Requirements ANSWERS IN EQUITY PLEADING. of Answer. Defendant cannot shelter himself behind equivocal, evasive, or doubtful terms, and thus mislead complainant, nor behind a lit- eral denial which amounts to no more than a negative pregnant or an evasion of the points of substance. 1 3. Must be on Knowledge, Information, Remembrance, or Belief. As a general rule the answer of a defendant in an equitable pro- ceeding should be as to his knowledge, information, remem- brance, or belief. 8 Where the facts are within defendant's knowledge, he must answer positively and not as to his information and belief ; * and 247; Coop. Eq. PI. 314; Dan. Ch. Pr. (5th Am. ed.) 726; Story Eq. PI. (loth ed.) 852; Wood v. Morrell, i Johns. Ch. (N. Y.) 103; Leacraft v. Demprey, 4 Paige (N. Y.) 124; Chan. 1821, Smith -v. Lasher, 5 Johns. Ch. (N.*Y.) 247; Morris v. Parker, 3 Johns. Ch. (N. Y.) 297; Utica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210; Pettit v. Chand- ler, 3 Wend. (N. Y.) 618; Morris v. Barker, 3 Johns. (N. Y.) 297; Hall v. Wood, i Paige (N. Y.)4O4; Devereaux v. Cooper, II Vt. 105; Hepburn v. Durand, I Bro. C. C. 503; Taylor v. Luther, 2 Sumn. (U. S.) 228; Mount- ford v. Taylor, 6 Ves. 792; New Eng- land Bank v. Lewis, 8 Pick. (Mass.) 119; Hunter v. Bradford, 3 Fla. 285; Barrow v. Bailey, 5 Fla. 9; Savage v. Benham, 17 Ala. 119; Smith v. Loomis, 5 N. J. Eq. 60. See also Jenkins v. Greenbaum, 95 111. n. Illustrations of Rule. If the bill charges defendant with having writ- ings and papers in his custody, pos- session, or power, an answer alleging that there are writings or papers in the West Indies, and that he cannot set forth the particulars thereof, but not alleging whether or not they are in defendant's custody, possession, or power, is insufficient for the reason that, if he admitted them to be in his possession, custody, or power, the court might order them brought into court within a reasonable time on a motion by complainant therefor. Far- quharson v. Balfour, T. & R. 190; Dan. Ch. Pr. (5tb Am. ed.) 726; Story Eq. PI. (loth ed.)852. An answer alleging that defendant had not certain books, papers, and writings in his possession, custody, or power, because they were coming over to this country, was held bad in that they were in his possession, and he should have so stated in his answer. Dan. Ch. Pr. (sth Am. ed.) 726; Story Eq. PI. (loth ed.)852. Dana (Ky.) Dana (Ky.) On a bill for a general accounting, which required defendant to show whether he had received specified sums, and if so, when, from whom, and on what accounts he had received them, it was held that setting forth a general account by way of schedule to the answer, and referring to it as con- taining a full account of all sums re- ceived, was insufficient, it being con- sidered necessary that the answer should be specific to the specific charges of the bill. Story Eq. PI. doth ed.) g 852; i Mitf. Eq. PL (by Jeremy) 309; Cooper Eq. PI. 314; Hepburn v. Durand, i Bro. C. C. 503- 1. Hill v. Lackey, 9 83; McLain v. Waters, g 55; Talbot v. Sebree, I Dana (Ky.) 56; Bailey v. Wilson, I Dev. & B. Eq. (N. Car.) 187; Bissell v. Bozman, 2 Dev. Eq. (N. Car.) 163; Grady v. Robinson, 28 Ala. 289. 2. DaniellCh. Pr. (sth Am. ed.) 722; Baileys. Wilson, i Dev. & B. (N. Car.) 182, 187; Reed v. Cumberland Mut. F. Ins. Co., 36 N. J. Eq. 146; Kinnaman v. Henry, 6 N. J. Eq. 90; Utica Ins. Co. v. Lynch, 3 Paige Ch. (N. Y.) 210; Brotherton v. Downey, 21 Hun (N. Y.) 436; Tradesmen's Bank v. Hyatt, 2 Edw. Ch. (N. Y.) 195; Robinson v. Woodgate, 3 Edw. Ch. (N. Y.) 422: Kittridge v. Claremont Bank, I Woodb. & M. (U. S.) 573; Kinnman v. Henry.. 6 N. J. Eq. 90; Devereux v. Cooper, II Vt. 103; Sanderlin z>. Sanderlin, 24 Ga. 583; Steinman v. Lancaster, 2 L. Bar. (Pa.) Nov. 12, 1870; Painter v. Hard- ing, 3 Phila. (Pa.) 144. 3. Miles v. Miles, 7 Fost. (N. H.) 440; Dinsmore v. Hazleton, 2 Fost. (N. H.) 535; Woods v. Morrell, I Johns". Ch. (N. Y.)io7; Noyes v. Inland, etc., Coasting Co., 4 McArth. (D. C.) i; Carey v. Jones, 8 Ga. 516; McAllister v. Clopton, 51 Miss. 257; Mead v. Day, 54 Miss. 58. 876 Requirements ANSWERS IN EQUITY PLEADING. of Answer, if not within his knowledge he must answer as to his information and belief, and not as to his information only, without stating his belief. 1 If defendant answers that he has no knowledge or information of the facts charged in the bill, he need not admit or deny them, or express any belief as to them one way or the other. 3 If defendant denies all knowledge of facts charged in the bill, but admits belief, he need not deny information. 3 If facts are within defendant's knowledge, but are not of recent occurrence, he has sometimes been permitted to answer as to his remembrance. 4 1. Miles v. Miles, 7 Post. (N.H.) 440; Dinsmore v. Hazleton, 2 Fost. (N. H.) 535; Woods v. Morrell, i Johns. Ch. (N. Y.) 107; Noyes v. Inland, etc., Coasting Co., 4 'McArthur (D. C.) i; Carey v. Jones, 8 Ga. 516; Mead v. Day, 54 Miss. 58; McAllister v. Clop- ton, 51 Miss. 257. Illustration. Thus an answer ad- mitting that the facts charged in the bill might be true, but asserting that defendant has no knowledge of such matters except from the bill, is insuf- ficient. Rienzle v. Barker, 4 Atl. Rep. (N. J.) 309; Reese v. Cumberland Ins. Co., 36 N. J. Eq. 146. Answer in Effect Denying Information. Where defendant answered to the facts charged in the bill, that " it might be true for anything he knew to the contrary, but that he was an utter stranger to all and every such matter," it was held that the answer was suffi- cient in that it also (at least in effect) denied information concerning the facts. Amhurst v. King, 2 Sim. & Stu. 183. So also an answer as to matters to which the defendant is not alleged to be privy, stating that they may be true for anything he knows to the contrary, but that he is a stranger to and cannot form any belief respecting them, is sufficient. Stetson v. Peters, 16 Leg. Int. (Pa.) 147, decided on the author- ity of Amhurst v. King, 2 Sim. & Stu. 183. If the Court is Satisfied that Defendant Cannot Answer Positively, an answer as to his belief will be allowed even as to his own acts. Hall v. Wood, I Paige (N. Y.)4. Clai- borne, 2 Hen. & M. (Va.) 17. Burden of Proof. " If a bar set up in the answer be insufficient as such, the 896 Exceptions ANSWERS IN EQUITY PLEADING, to Answers. Material Allegation or Interrogatory Unanswered. But exceptions will only be allowed where some material allegation, charge, or inter- rogatory in the bill has not been fully answered. 2 Confined to Discovery. Exceptions are confined to matters of dis- covery, 3 where the complainant must rely on the defendant to prove his case. 4 complainant would be entitled to ex- cept as for want of a full answer; and to avoid answering the exceptions, the defendant, in such case, would require leave of court before he could amend the bar. If, instead of excepting, the complainant should go to proof, the burden would be on him to prove the bill and on the defendant to prove the bar, each being entitled to examine the other as a witness." Per Bradley, C. J., in Gaines v. Agnelly, i Woods (U. S.) 238. Amount of Proof. Where an answer is objectionable as insufficient, but no exceptions are taken to it, the effect is to put the complainant to proof of the allegations in the bill, though the same amount of proof is not required. Savages. Benham, 17 Ala. 119; citing Goodwin v. McGehee, 15 Ala. 232; Waters v. Creagh, 4 Stew. & P. (Ala.) 410; Wilkins v. Woodfin, 5 Munf. (Va.) 183. 1. Frivolous Exceptions. Frivolous exceptions, even though technical ly well taken, are discountenanced. Johnson v. Tucker, 2 Tenn. Ch. 244; Del Pont v. De Fastet, i T. & R. 486; Reed v. Cumberland Mut. F. Ins. Co., 36 N. J. Eq. 393. See Utica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210. Verbal Criticism Slight Defects, etc. Exceptions for insufficiency will not be allowed when founded upon mere verbal criticism, slight defects, or omissions in matter not material. Cleaves v. Morrow, 2 Tenn. Ch. 59 2 > Baggott v. Henry, I Edw. Ch. (N. Y.) 7. In the last case McCoun, V.-Ch., expressed himself thus : " I wish to have it understood that whilst, on the one hand, I shall always hold a de- fendant to a full, frank, and explicit disclosure of all matters material or necessary to be answered, whether resting within his own knowledge or upon his information and belief, so, on the other hand, I mean as far as lies in my power to discourage the taking of those exceptions which are found- ed upon mere verbal criticism, slight defects, or omissions in matter not material to the cause, and when it is evident the defendant can have no de- sign or intention to suppress the truth, or evade a full and fair answer; and whenever exceptions of the latter char- acter are brought before me I shall not hesitate to overrule them and im- pose payment of all such costs as a litigious and vexatious proceeding deserves." Allegations Neither Admitted Nor Denied. If an exception be taken to an answer in chancery upon the ground that certain allegations in the bill are neither admitted nor denied, it be- comes necessary to inquire whether the facts charged in the allegations are material, and might, if established, contribute to support the equity of the complainant. If they will not, the omission to answer the allegations is not a good ground for exceptions to the answer. Hardiman v. Harris, 7 How. (U. S.) 726. Correctness of Arithmetical Problem. An exception for insufficiency on the ground that defendant has not an- swered as to the correctness of a mere arithmetical proposition will not be allowed. Mclntyre v. Union College, 6 Paige (N. Y.) 239. No Occasion for Controversy. The complainant cannot by means of an exception to the answer make that a matter of controversy as to which, ac- cording to the frame of his bill, no controversy can arise. Gleaves v. Morrow, 2 Tenn. Ch. 592. 2. Stafford v. Brown, 4 Paige (N. Y.) 88; Richardson v. Donehoo, 16 W. Va. 703; West v. Williams, i Md. Ch. 358. 3. U. S. v. McLaughlin, 24 Fed. Rep. 823; Smith v. St. Louis Mut. L. Ins. Co., 2 Tenn. Ch. 599. Discovery Must Be Beneficial. Excep- tions for insufficiency are proper only for obtaining a discovery which would be beneficial to the complainant. Clute v. Bool, 8 Paige (N. Y.) 83; Fay v. Jewett, 3 Edw. Ch. (N. Y.) 323; Davis v. Mapes, 2 Paige (N. Y.) 105. 4. Not Applicable to Bills for Relief. This doctrine does not apply to bills i Encyc. PI. & Pr. 57. 897 Exceptions ANSWERS IN EQUITY PLEADING, to Answers. Under General Interrogatory. The practice in many states allows exceptions to be taken to an answer that fails to notice material charges and statements in the bill under the general interroga- tory, though no special interrogatories be introduced. 1 Several Defendants. Where several defendants answer separately, exceptions should be taken to each answer.* And if a defendant, answering jointly with another, dies, exceptions may be taken to the answer, as being that of the survivor only. 3 Setting Up Questions of Law. Where an answer sets up questions of law instead of facts, exceptions are well taken. 4 Waiver. The right to except may be waived. 5 b. WHEN THEY Do NOT LIE New Matter. A substantive de- fense not responsive to the inquiries of the bill, but consisting of new matter exclusively, is not the subject of exceptions. 6 for relief. McClaskey v. Barr, 40 Fed. Rep. 559. See U. S. v. McLaughlin, 24 Fed. Rep. 823. 1. Miles v. Miles, 27 N. H. 440; Tucker v. Cheshire R. Co., 21 N. H. 29; M. E. Church v. Jaques, i Johns. Ch. (N. Y.) 65 ; Bank of Utica v. Messereau, 7 Paige (N. Y.) 517; Cuy- ler v. Bogert, 3 Paige (N. Y.) 186. See also Langdon v. Goddard, 3 Story (U. S.) 13; Brakeley v. Tuttle, 3 W. Va. 129. 2. i Dan. Ch. Pr. (sth ed.) 674; Sydolph v. Monkston, 2 Dick. 609. 3. i Dan. Ch. Pr. (5th ed.)764; Lord Herbert v. Pusey, i Dick. 255. 4. Craig v. People, 47 111. 487. 5. Waiver of Exceptions Judicious at Times. "The plaintiff may, if he choose, waive his right to except; and it is always most judicious to do so where his proofs are ample and at hand and the character or conduct of the defendant indicates that he is not altogether trustworthy upon oath; for in such cases he will attain his object much sooner and better by taking the answer at once, as he can get it, and proceeding directly to collect proof, without loss of time, than by stopping to take exceptions." Per Bland, C., in Hagthorp v. Hook, i Gill & J. (Md.)2?4- Taking Bill as Confessed Waives Ex- ceptions. It is a waiver of exceptions if complainant takes his bill as con- fessed as to those points not responded to. Griffith v. Depew, 3 A. K. Marsh. (Ky.) 177, 13 Am. Dec. 141. Moving to Amend Bill Waives Excep- tions. If a plaintiff excepts to an an- swer and afterward moves to amend his bill, that operates as a waiver of the exceptions to the answer; for the plaintiff by the amendments may strike out the very passages excepted to. De La Torre v. Bernales, 4 Madd. 395- Waiver of Exceptions to First Answer. After objecting to the filing of an answer because verified by a clerk in another state, plaintiff offered to reply to it and filed an amended petition, and also waived any objections to a subsequent answer of the same party. Any of these acts should have been deemed a waiver of objections to the first answer, especially as no excep- tion was taken until the submission of the case. Mason v. Mason, 5 Bush (Ky.) 190. 6. Bower Barff Rustless Iron Co. v, Wells Rustless Iron Co., 43 Fed. Rep. 391; Adams v. Bridgewater Iron Co., 6 Fed. Rep. 179; Spencer v. Van Du- zen, i Paige (N. Y.) 555. Exceptions Lie Only for Matters Alleged in Bill. Exceptions do not lie to an answer because it does not state mat- ter set forth in avoidance fully and explicitly. They lie only for matters alleged in the bill and not sufficiently answered. Lanum v. Steel, 10 Humph. (Tenn.) 280; Stafford v. Brown, 4 Paige (N. Y.)88. " A defendant may allege any facts in his answer, as an avoidance, which gives rise to an equity that constitutes a good defense, as payment, a release, etc.; and however generally or darkly such matter may be stated, the plaintiff cannot except because they form no part of that response he had called for; and if such statements are so obscure as to be of no avail it can be of no in- jury to him. The defendant alone Exceptions ANSWERS IN EQUITY PLEADING, to Answers. Failure to Answer, Admission of Truth. Nor are exceptions for insuf- ficiency proper where by statute the failure to answer a material averment admits its truth. 1 Interrogatory as to Books and Papers. Where the bill contains an in- terrogatory as to books and papers which the defendant does not answer, an exception for this reason should not now be taken. 8 interrogatories Substantially Answered. And where interrogatories are substantially answered, exceptions will be allowed with reluct- ance. 3 Bill Inexplicit. If the bill is inexplicit and ambiguous, excep- tions to the answer should not be allowed. 4 Objection of Res Judicata. And the objection of res judicata to the defenses setup by an answer cannot be taken by exceptions. 5 Disclaimer. Exceptions will not be allowed to a simple dis- claimer. 6 irregularities in Practice. They do not lie for irregularities in prac- tice. 7 tears the consequence of the lame and imperfect manner in which he puts for- ward his own defense." Per Bland, C., in Salmon v. Clagett, 3 Bland (Md.) 141. Answer Stating Immaterial Fact Im- proper Interrogatories. Exceptions to an answer will not be sustained be- cause it states a fact totally immaterial; nor because it answers interrogatories which were improperly put, and which the party was not bound to answer. Conway v. Turner, 8 Ark. 356. 1. Richardson v. Donehoo, 16 W. Va. 685, holding, however, that in such a case an answer may be ex- cepted to on the ground that its de- nials are not sufficiently specific. What is Admitted. Under such a statute only averments of facts charged to be or clearly within the defendant's knowledge are admitted by failure to deny. Cowen v. Alsop, 51 Miss. 158. 2. I Dan. Ch. Pr. (sth ed.) 760; Law v. London Indisputable L. Policy Co., 10 Hare App. 20; Rochdale Canal Co. v. King, 15 Beav. n; Kidger v. Wors- wick, 5 Jur. N. S. 37; Barnard v. Hunter, I Jur. N. S. 1065; Pifford v. Beeby, L. R. I Eq. 623. But see Hud- son v. Grenfell, 3 Giff. 388. Failure to Answer as to Particular Docu- ments Exceptable. But if the interrog- atory is as to particular documents, a failure to answer this would be ex- ceptable. Catt v. Tourle, 18 W. R. 966. 3. Read v. Woodruffe, 24 Beav. 421. Separate Questions Not Separately An- swered. If the whole answer, taken together, is a substantial reply to the whole interrogatory, that is sufficient, though each separate question may not be separately answered. Mott v. Hall, 41 Ga. 117. 4. The court must see by referring to the bill, in connection with the ex- ception, that the precise matters as to which a further answer in the bill is sought are stated in the bill, or that such an answer was called for by in- terrogatories. A plaintiff should not be allowed to except to an answer for insufficiency when his own bill is in- explicit and ambiguous, and it is con- sequently doubtful what information he seeks to obtain from the defendant. West v. Williams, i Md. Ch. 358. Failure to Append Footnote to Bill. The complainant's omission to append a footnote to his bill precludes him from claiming advantage of the fail- ure of the defendant to answer any of its allegations. Sprague v. Tyson, 44 Ala. 338. 5. Thrifts v. Fritz, 101 111. 457. 6. Remedy for Disclaimer Accom- panied by Answer. Where defendant files a mere disclaimer, the remedy of the complainant who is entitled to an answer is to move to have the dis- claimer taken off the files. If, how- ever, it be accompanied by an insuf- ficient answer, that may be excepted to. Ellsworth v. Curtis, 2 Chan. Sent. (N. Y.) 72. 7. Thus, the verification of .an answer, taken abroad, was alleged to be not properly authenticated; where- 899 Exceptions ANSWERS IN EQUITY PLEADING, to Answers. Oath. Nor are they applicable to an answer not under oath, 1 nor where the oath has been waived. 3 Answer of Corporation. Neither can exception be taken to the answer of a corporation under its corporate seal. 3 Answer of Attorney-General. Exceptions will not lie to the answer of the Attorney-General. 4 Answer of Infant. Likewise they cannot be taken to the answer of an infant. Guardians. Exceptions are not applicable to the answer of a guardian of a person of unsound mind, against whom no com- mission has issued. 6 Answer in Aid of Plea. Nor will they lie to an answer in aid of a plea. 7 Answer Used as Plea. Nor where the answer is used as a plea in bar. 8 upon the complainant excepted to cer- tain portions of the answer for in- sufficiency, relying upon its being no answer by reason of the defect in its verification. Held, that he had mis- taken his remedy, which was by mov- ing to take it from the files, not by ex- cepting. Vermilya v. Christie, 4 Sandf . Ch. (N. Y.)376- 1. Goodwin v. Bishop, 145 111. 421; Fulton County v. Mississippi, etc., R. Co., 21 111. 366; Brown v. Scottish American Mortgage Co., no 111. 235. Mr. Hoffman says : " The general rule is that exceptions cannot be taken to an answer without oath, or upon pro- testation of honor." i Hoff. Ch. Pr. 240, note, citing Hill v. Earl of Bute, 2 Fowl. II. 2. Mix v. People, 116 111. 265; Shep- pard -v. Akers. i Tenn. Ch. 326; McCor- mick v. Chamberlin, n Paige (N. Y.) 543; U. S. v. McLaughlin, 24 Fed. Rep. 823. New Jersey. But see Ryan v. Angle- sea R. Co. (N. J. 1888), 12 Atl. Rep. 539, where it was held that under New Jersey statutes a person calling for an answer not under oath might never- theless except to the answer filed. 3. Wallace v. Wallace, Halst. Dig. (N. J.) 173; Fulton County v. Missis^ sippi, etc., R. Co., 21 111. 365. Ex- ceptions to the answer of a corporation under its corporate seal alone, as a discovery, will not lie, and as a plead- ing would be a useless form. Smith v. St. Louis Mut. L. Ins. Co., 2 Tenn. Ch. 599. Corporation Required to Answer, Though Not Under Oath. In Gamewell Fire Alarm Tel. Co. v. Mayor, 31 Fed. Rep. 312, it was held that although a corporation cannot be compelled to answer to a bill in equity under cath, it can be required to answer and must answer fully. Exceptions in this case were sustained. And see Reed v. Cumberland Mut. F. Ins. Co., 36 N. J. Eq. 393; Colgate v. Compagnie Fransaise, 23 Blatch. (U. S.) 88, 23 Fed. Rep. 82; Hale v. Continental L. Ins. Co., 16 Fed. Rep. 718; Kittredge v. Claremont Bank, i Woodb. & M. (U. S.) 244, 3 Story (U. S.) 590. Voluntary Answer of Corporation Offi- cer. A complainant is not entitled to file exceptions to the voluntary answer of a corporation officer to a judgment creditor's bill, especially when the answer contains an express denial of the allegations of the bill. McCreery v. Circuit Judge, 93 Mich. 463. 4. Davison v< Att.-Gen., 5 Price 398. 5. Lucas v. Lucas, 13 Ves. Jr. 274; Copeland v. Wheeler, 4 Bro. C. C. 256; Leggett v. Sellon, 3 Paige (N. Y.) 84. See Bulkley z/. Van Wyck, 5 Paige (N. Y.) 536. 6. Micklewaithe v. Atkinson, I Coll. 173- 7. Leftwich v. Orne, i Freem. Ch. (Miss.) 207. 8. Under the new rule in equity, 39th, where the answer sets up a bar to the whole bill, and claims the benefit of it as of a plea in bar, it is no longer a ground of exception that it does not fully answer the allegations of the bill. Gaines v. Agnelly, i Woods (U. S.) 238. 900 Exceptions ANSWERS IN EQUITY PLEADING, to Answers. c. PLEA STANDING FOR ANSWER. Where a plea is ordered to stand for an answer, a direction is frequently inserted giving the plaintiff liberty to except. 1 Express Leave. And exceptions cannot be taken unless this leave be expressly given. 2 Prohibiting Exceptions. The order may of course prohibit the com- plainant from taking exceptions. 3 d. ANSWER ACCOMPANIED BY PLEA OR DEMURRER. Where an answer is accompanied by a plea or demurrer to a part of the 1. i Dan. Ch. Pn (5th ed.) 701; citing Glover v. Weedon, 3 Jur. N. S. 903; Dean v. Webster, 15 W. R. 395- " Where the complainant is allowed to except to the answer for insufficien- cy, the order allowing the plea to stand for an answer, with leave to ex- cept thereto, only implies that the plea contains matters which, if put in the form of an answer, would have been available as a defense to the whole or a part of the matters which it professes to cover. But the com- plainant is permitted to except to it, as an answer, because he is entitled to a further discovery in reference to matters of the bill." McCormick v. Charaberlin, II Paige (N. Y.) 543. Complainant Not Obliged to Except. Where a plea is allowed to stand for an answer, the complainant is not obliged to take exceptions, although the order gives him leave so to do. McCormick v. Chamberlin, II Paige (N. Y.) 543- 2. Order Silent as to Exceptions. Where the defendant pleaded to the whole bill, and, on arguing the plea, it was ordered to stand for an answer, without saying one way or the other whether the plaintiff might except, it was held that he could not, for the court, in ordering the plea to stand for an answer, must be understood to have meant a sufficient answer, an in- sufficient answer being as none. Sel- lon v. Lewen, 3 P. Wms. 239. If a Plea is Ordered to Stand for an an- swer, it is allowed to be a sufficient answer to so much of the bill as it covers, unless, by the order, liberty to except is given to the plaintiff. Kirby v. Taylor, 6 Johns. Ch. (N. Y.) 242; Coke v. Wilcocks, Mos. 73; Maitland -v. Wheeler, 3 Atk. 814. And see Or- cutt v. Orms, 3 Paige (N. Y.) 459; McCormick v, Chamberlin, n Paige (N. Y.) 543; Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 384; Meeker v. Marsh, i N. J. Eq. 198. Exceptions to Part of Bill Not Covered by Plea. Where the plea is to part only of a bill, and it is accompanied by an answer to the rest, an order that it may stand for an answer, with- out giving the plaintiff liberty to ex- cept, will not preclude the plaintiff from excepting to the answer to that part of the bill which is not covered by the plea, i Dan. Ch. Pr. (5th ed.) 700; Coke -v. Wilcocks, Mos. 73; Ld. Red. 304; Kirby v. Taylor, 6 Johns. Ch. (N. Y.)242. Complainant May Move for Leave to Ex- cept. In Brien v. Jordan, I Tenn. Ch. 625, it was held, that inasmuch as the practice of allowing a plea to stand for an answer was unusual in Tennessee, the complainant might move for leave to except, and the defendant for leave to file a more complete an- swer, if either saw proper so to do. 3. Liberty Qualified. Thus the liberty to except is sometimes qualified, so that the defendant may be protected from any particular discovery he ought not be called upon to make. Pusey v. Desbouvrie, 3 P. Wms. 315; Alardes v. Campbel, Bunb. 265; Pearse v. Dobinson, L. R. i Eq. 241; King v. Holcombe, 4 Bro. C. C. 439. Or as to matters which he is not legally bound to answer. Orcutt v. Orms, 3 Paige (N. Y.) 459; Brereton v. Gamul, 2 Atk. 240; Bayley v. Adams, 6 Ves. Jr. 586. Plea Disallowed on Technical Defect. Where a plea, which constituted a full defense to a particular part of the bill, was disallowed on the ground of technical defect or informality in the manner of pleading, the court permit- ted it to stand for an answer, and pro- hibited the complainant from calling, by exceptions, for a further answer to that part of the bill. Leacraft v. Demprey, 4 Paige (N. Y.) 124. 901 Exceptions ANSWERS IN EQUITY PLEADING, to Answers. bill, exceptions cannot be taken to the answer till the plea or demurrer has been argued, because by so excepting the complain- ant would admit the validity of the plea or demurrer. 1 Plea Confined to Belief Prayed. But where the plea is confined to the relief prayed, it seems that exceptions may be taken to the ac- companying answer before the plea is set down for argument. 2 Plea or Demurrer Overruled. After the plea or demurrer accom- panied by an answer is overruled, the complainant, if he desires a further answer, must take exceptions. 3 Allowed. And so he may except upon their allowance, or upon the allowance of a partial demurrer, or upon the overrul- ing of a partial plea. 4 3. Form. Care should be exercised in drawing the exceptions, since, if mistakes occur therein, no new exceptions can properly be added. 5 They should be in writing, 6 signed by counsel, 7 and 1. I Dan. Ch. Pr. (5th ed.) 691; Braith- waite Pr. 127, 128; Darnell v. Reyny, i Vern. 344; Siffkin v. Manning, 9 Paige (N. Y.) 222. Motion to Strike Case from Calendar. - When the complainant before the ar- gument of the plea had filed excep- tions for insufficiency in the accom- panying answer, it was held that, when the plea was set down for argument, the defendant might have moved to strike the case from the calendar, on the ground that the filing of excep- tions admitted the goodness of the plea. Brownell v. Curtis, 10 Paige (N. Y.) 210. In this case the language of Lord Redesdale is given thus : " Where a defendant pleads or demurs to any part of the discovery sought by the bill, and answers like%vise, if the complainant takes exceptions to the answer before the plea or demurrer has been argued and disallowed, he admits the plea or demurrer to be good; for unless he admits it to be good it is impossible to determine whether the answer is sufficient or not." In Boyd v. Mills, 13 Ves. Jr. 85, where the demurrer was set down for argument after exceptions had been filed to the answer, the application was to strike it from the calendar; and the court gave the complainant leave to withdraw the exceptions, on payment of the costs of the motion, and to again except if the demurrer were allowed. 2. i Dan. Ch. Pr. (5th ed.) 691, citing Pigot v. Stace, 2 Dick. 496; Sidney v. Perry, 2 Dick. 602. 3. Kuyper v. Reformed Dutch Church, 6 Paige (N. Y.) 570; Siffkin i: Manning, 9 Paige (N. Y.) 222; Many v. Beekman Iron Co., 9 Paige (N. Y.) 196. Exceptions Proper as to those Parts Not Covered by Demurrer. If a provision, that complainant have leave to except to the answer to that part of the bill attempted to be covered by the de- murrer, be inserted in the order over- ruling the demurrer, this does not deprive complainant of his right to except to the answer to that part of the bill which the demurrer did not profess to cover. Siffkin v. Manning, 9 Paige (N. Y.) 222. Time. Twenty days were allowed complainant within which to except, in Summers v. Murray, 3 Edw. Ch. (N. Y.) 205; Siffkin v. Manning, 9 Paige (N. Y.) 222; Bragg v. Witcomb, Walk. (Mich.) 307. Thirty days were allowed in Many v. Beekman Iron Co., 9 Paige (N. Y.) 196. 4. i Dan. Ch. Pr. (sth ed.) 761; Cotes v. Turner, Bunb. 123; Story's Eq. PI. 866. 5. i Dan. Ch. Pr. (sth ed.) 764, re- ferring to Partridge v. Haycraft, n Ves. Jr. 570. Amendments. There are cases, how- ever, allowing the exceptions to be amended on the ground of mistake. Dolder v. Bank of England, 10 Ves. Jr. 284; Bancroft v. Wentworth, cited in note to 10 Ves. Jr. 285; Northcote v. Northcote, i Dick. 22. 6. i Dan. Ch. Pr. (sth ed.) 763; citing Beames 78, 181. 7. Candler v. Partington, 6 Madd. 72; Yates v. Hardy, Jac. 223; Hitch- cock v. Rhodes, 42 N. J. Eq. 495; 902 Exceptions ANSWERS IN EQUITY PLEADING, to Answers. properly entitled, 1 else they may be suppressed. Should be Specific. Exceptions for insufficiency must be specific, 2 and should state the particular points or matters which are unan- swered or imperfectly answered. 3 Mode Discretionary. The mode in which the insufficiency shall be pointed out seems to be discretionary with the court. 4 4. Time. The time allowed for taking exceptions is in some cases governed by order or rule of court, 5 in others it is prescribed Cross v. Cohen, 3 Gill (Md.) 257; Stephens Eq. PI. 864; Mitf. Eq. PI. (Jeremy)3i3; 37 Me. 583; Rule 8, Chan- cery Rules. If the Exceptions Are Not Signed by counsel' they may, on motion, with notice to the plaintiff, be striken from the files, i Dan. Ch. Pr. (sth ed.) 763- 1. i Barb. Ch. Pr. (2d ed.) 181, citing Williams v. Davis, i Sim. & Stu. 426. 2. Turnage v. Fisk, 22 Ark. 286. Exception Too General. An objection to an answer on the ground that it is without fulness and particularity, and not according to the best of de- fendant's knowledge, information, re- membrance, and belief, is too general. Mutual L. Ins. Co. v. Cokefair, 41 N. J. Eq. 142. 3. Stafford v . Brown, 4 Paige (N. Y.) 88; Buloid v. Miller, 4 Paige (N. Y.) 473; Baker v. Kingsland, 3 Edw. Ch. (N. Y.) 138; Mix. v. People, 116 111. 265; Hodgson v. Butterfield, 2 Sim. & Stu. 236. What Should he Stated. Exceptions for insufficiency should state the charges in the bill, the interrogatory applicable thereto to which the an- swer is responsive, and the terms of the answer verbatim, so that the court may see whether it is sufficient or not. Brooks v. Byam, i Story (U. S.) 296; Fuller 11. Knapp, 24 Fed. Rep. 100 ; Bower Barff Rustless Iron Co. v. Wells Rustless Iron Co., 43 Fed. Rep. 391; Richardson v. Donehoo, 16 W. Va. 685. See Woodroffe v. Daniel, 10 Sim. 243; Brown v. Keating, 2 Beav. 581; Esdaile v. Molyneux, i De G. & S. 218; Hodgson v. Butterfield, 2 Sim. & Stu. 236; Duke of Brunswick v. Duke of Cambridge, 12 Beav. 279. See also Higginson v. Blockley, \ Jur. N. S. 1104, 25 L. J. Ch. 74 V. C. K. And they must specify that the answer complained of was an answer to the bill. i Dan. Ch. Pr. (5th ed.) 763; Earl of Lichfield v. Bond, 5 Beav. 513, 6 Jur. 1076. Extracts from Answer Not Sufficient. Exceptions to an answer for insuffi- ciency should refer pointedly to the bill. It is not enough to give mere extracts from the answer and declare them insufficient. Baker v. Kings- land, 3 Edw. Ch. (N. Y.) 138. Exception Having No Point Disallowed. An exception having no point, and which would compel the court to find out what was required to be answered, will be disallowed. McKeen v. Field, 4 Edw. Ch. (N. Y.) 379. Several Questions in One Interrogatory. Where several questions are comprised in one interrogatory, the unanswered questions only should be included in the exceptions, i Dan. Ch. Pr. (sth ed.) 764; Higginson z>. Blockley, i Jur. N. S. 1104, V. C. K. See, however, Hambrook v. Smith, 17 Sim. 209, 16 Jur. 144; Hoffman v. Postill, L. R. 4 Ch. App. 681. For forms of exceptions, see Lang- don -v. Goddard, 3 Story (U. S.) 13; Kittredge v. Claremont Bank, 3 Story (U. S.) 590- 4. Craig v. Sebrell, 9 Gratt. (Va.) 131. In this case it was said that, even if the form of exceptions is not discretionary, yet, if they are sus- tained and a further answer is filed, the objections will be waived. 5. By Order or Rule of Court. Illinois. All exceptions to answers or to in- terrogatories exhibited shall be filed within such time as the court may di- rect, and be argued within such time as may be fixed by the court. Rev. Sts. 111. (1845) p. 96, sec. 30; Rev. Sts. 111. (1893), p. 220, sec. 27. New Jersey. By the eleventh Rule of this court, exceptions for insuffi- ciency shall not be entered until six days after service of a copy of the ex- ceptions on the defendant or his solici- tor. Wyckoff v. Cochran, 4 N. J. Eq. 420. Ten Days Allowed by Court. An an- swer from China being objected to as not responsive to all the charges of 93 Exceptions ANSWERS IN EQUITY PLEADING. to Answers. by statute. 1 Enlarging Time. But the court may, for good cause shown, en- large the time. 2 Exceptions Not Filed in Time. If the exceptions are not filed within the prescribed period, the answer will be deemed sufficient. 3 After Replication. Exceptions cannot be taken after replication filed. 4 in Appellate Court. And, a fortiori, when no exceptions were taken in the court below, it is too late to make objection in the appellate court. 5 opinion that the cause will be more speedily determined by a withdrawal of the exceptions, the time will not be enlarged, though good cause be shown, but the complainant will be allowed to withdraw the exceptions, and to reply to the answer. American L. & T. Co. v. East, etc., R. Co., 40 Fed. Rep. 384. Special Application for Enlarging Time. A chamber order allowing the com- plainant further time to file exceptions does not operate so as to enlarge the time within which exceptions must be filed to prevent an application for the dissolution of an injunction upon bill and answer. If it is desired to extend the time for excepting beyond the ten days allowed, there must be a special application to the court, upon due notice to the adverse party. Wake- man v. Gillespy, 5 Paige (N. Y.) 112. Moving to Discharge Writ of Ne Exeat before Time for Filing Exceptions Had Expired. Though the plaintiff has a certain time allowed him to except to the answer to a bill for a ne exeat, it is not in all cases necessary for the defendant to await the expiration of that time before moving, on the ground of the answer, for a discharge of the writ. Thorn v. Halsey, 7 Johns. Ch. (N. Y.) 189. 3. Pierce v. Brown, 7 Wall. (U. S.) 205; Siffkin v. Manning, 9 Paige (N. Y.) 222. Tennessee. If the plaintiff fail to except within said time (twenty days after answer filed), the cause shall be at issue, and stand for trial at the first term after the answer is filed. Code Tenn. (1884) 5144. 4. Coleman v. Lynn, 4 Rand. (Va.) 454- Answer Not Regularly Filed. Excep- tions to an answer, where the answer is not regularly filed, may be filed at anytime before replication. Knowles v. Gwinnup, MS. (N. J.) Jan. 1828. 5. Arnolds. Slaughter,36W.Va. 598. the bill, the court directed the plain- tiff to file his exceptions within ten days. Read v. Consequa, 4 Wash. (U.S.) 335- No Rule to Reply. The complainant may file exceptions to the defendant's answer although two months have elapsed since the answer was put in, if the defendant has not left a rule to reply. Brent v. Venable, 3 Cranch (C. C.) 227. 1. By Statute. Alabama. Excep- tions to answers must be made within sixty days after the same are filed. Code Ala. (1886) sec. 3457. New Jersey. The complainant shall file exceptions or a replication, or set down the cause for hearing upon bill and answer, within thirty days after the expiration of the time limited or granted for filing the answer; or on failure thereof his bill shall be dis- missed, with costs, unless good cause be shown to the contrary. Chan. Acts N. J. (Ridley) sec. 33; Wyckoff v. Cochran, 4 N. J. Eq. 420. Mississippi. Exceptions to answers must be filed at or before the next term after the answer has been filed. Rev. Code Miss. (1880) sec. 1891. Tennessee. Twenty days are al- lowed within which to file exceptions. Code Tenn. (1884) sec. 5143. 2. Time Prescribed May be Changed. The time allowed for filing exceptions is limited by the act of 1801, ch. 6, 24, and the 23rd Rule of chancery practice, but these are not so impera- tive and inflexible in their nature that the chancellor, upon sufficient cause shown, may not relax them and per- mit the exceptions to be filed after the time so limited. Marsh v. Crawford, I Swan (Tenn.) 116. Withdrawal of Exceptions. Where the complainant allows the time fixed by rule of court for setting down exceptions to pass by, and the court, after examining the exceptions, is of 904 Exceptions ANSWERS IN EQUITY PLEADING, to Answers. Final Hearing. Or after the cause is opened upon the final hear- ing. J After Reference for Impertinence. Exceptions for insufficiency may now be filed after a reference for impertinence. 2 5. Proceedings. The exceptions having been properly drawn and signed by counsel, in the manner already indicated, are in the next place to be endorsed and filed in the proper office, and a copy is to be served upon the defendant or his solicitor. 3 Setting Down for Hearing. And if the defendant does not submit to the exceptions, he may set them down for hearing. 4 Two Defendants. Where two or more defendants put in a joint and several answer, which is excepted to for insufficiency, and one or more of them submit to the exceptions, the others may have them argued. 5 Disposal of Exceptions. When exceptions are filed to an answer they must be disposed of before any further proceedings can take place in the cause. 6 The manner of disposing of exceptions va- ries in different jurisdictions, in some being referred in the first 1. Severns v. Hill, 3 Bibb (Ky.) 240. 2. Patriotic Bank v. Bank of Wash- ington, 5 Cranch (C. C.) 602. English Practice Present Practice. By the English practice, scandal and impertinence in an answer must be disposed of before its sufficiency can be considered ; but here, exceptions for insufficiency and impertinence may be filed and acted on together. John- son v. Tucker, 2 Tenn. Ch. 244. 3. Barb. Ch. Pr. (2ded.)i8s. New York. On taking exceptions, it was the duty of the complainant, in addition to the entry of the order of reference, to either serve a copy of the order or a notice that it has been entered; or he had to take out a sum- mons to proceed upon the exceptions, and serve the same within the ten days specified in the fifty-first Rule of the Court of Chancery, or the exceptions were considered as abandoned. Joslin v. Joslin, I Chan. Sent. (N. Y.) 55; Peale v. Bloomer, 8 Paige (N. Y.) 73. New Hampshire. Exceptions will be deemed waived unless allowed and delivered to the defendant's solicitor within one month from the delivery of the answer, or unless further time be allowed by the justice. 38 N. H. 609; Rule 20, Chan. Rules. 4. i Dan. Ch. Pr. (sth ed.) 767. Exceptions to Part of Answer Sustained. Where exceptions to part of the answer are filed and sustained, all of the answer not affected by such excep- tions is left standing in the cause. Hemphill v. Miller, 16 Ark. 271. If defendant, in such case, does not ask leave to amend his answer, it is not error to proceed to hear the case on the bill and so much of the answer as is not excepted to. Chapman v. Pittsburg, etc., R. Co., 26 W. Va. 300. Virginia and West Virginia. When the plaintiff files exceptions v to an an- swer, they shall at once be x set down to be argued. Code Va. (1887) sec. 3276; Code W. Va. (1887) p. 790, sec. 54- 5. i Dan. Ch. Pr. (5th ed.) 767, citing Hinde268; Wyatt Pr. 204. 6. Clarke v, Tinsley, 4 Rand. (Va.) 250. Strictly speaking, the court should expressly pass upon the excep- tions filed to an answer before proceed- ing to finally hear the case. But if the exceptions are insufficient on their face, or if the allegation, charge,- or inter- rogatory alleged not to be sufficiently answered is not material, or if it ap- pears that the allegation is sufficiently answered, and that the court ought to have disallowed or annulled theexcep- tions for either of said causes, and the court sees that the plaintiff is not prej- udiced by the court below proceeding to finally hear the case, the final decree will not be reversed merely because the court below did not expressly pass upon such exceptions. Richardson v. Donehoo, 16 W. Va. 685. 95 Exceptions ANSWERS IN EQUITY PLEADING. to Answers. instance to a master, 1 in others being decided upon directly by the court. 2 Allowed in Part. Exceptions for insufficiency may be allowed in part and overruled in part. 3 Appeal. The defendant is entitled to a writ of error to reverse the order of the court below, sustaining exceptions to the suffi- ciency of his answer. 4 When Disallowed. Where exceptions are disallowed, and no rep lication is filed, the answer will be taken as true. 5 1. New York Tennessee Vermont. master, Wardlaw, Ch., saying: "The In New York, Tennessee, Ve'rmont, and chancellor is the court, and he. may if some of the other states exceptions he chooses dispense altogether with are referred to a master in the first the aid of the master." Sattervvhite instance, with an appeal to the chan- v. Davenport, 10 Rich. Eq. (S. Car.) cellor. Byington v. Wood, I Paige 305. New Hampshire. In New Hampshire (N. Y.) 145; Wood v. McFerrin, 2 Baxt. (Tenn.) 493; Hunt v. Gookin, 6 exceptions may be allowed by a jus- Vt. 462. See Davis v. Davis, 2 Atk. 24. New Jersey. By statute in New Jersey it is provided that, when ex- tice. 38 N. H. 609, Rule 20, Chan. Rules. For proceedings on exceptions when referred to master, see article REFER- ceptions shall be filed to an answer, a ENCES. rule may be entered, of course, with 2. Practice in Federal Courts. Under the clerk, either in term time or in va- the &3rd Rule of equity practice, ex- cation, to refer the same to a master of ceptions to an answer for insufficiency the court, who shall decide and report must be set down on a rule day for upon them within thirty days after hearing before a judge of the court, they are filed; but that an appeal A reference of such exceptions on a from such report shall be allowed, to day not a rule day, and to a master the chancellor, who shall hear and instead of a judge of the court, is, un- determine the same at the next term less cured by some subsequent action or at such times as the chancellor, of the court, a nullity, and is an aban- upon the application of either party, donment of the exceptions. La Vega shall appoint. Chancery Acts N. J. (Ridley) sec. 34; Wyckoff v. Cochran, 4 N. J. Eq. 420. In Camden, etc., R. Co. v. Stewart, 19 N. J. Eq. 345, however, it was held that the above provisions were for the relief of the court, and that con- sequently exceptions might be heard v. Lapsley, i Woods (U. S.) 428. 3. i Dan. Ch. Pr. (5th ed.) 764; i Barb. Ch. Pr. (2nd ed.) 182; East India Co. v. Campbell, i Ves. 247. 4. Rutherford v. Clegnorn, 26 Ga. 154- Exception for Insufficiency Resembles Demurrer. An exception to an an- directly by the chancellor at his op- swer for insufficiency is in the nature tion. West Virginia. In of a demurrer, and admits the truth of West Virginia the matters excepted to ; and it is there may be a reference to a com- error for the court to sustain an excep- missioner in the discretion of the Cir- tion to a matteralleged in the answer, cuit Court. Arnold v. Slaughter, 36 which, if true, would be a proper W. Va. 589. ground of defense to the bill in whole Mississippi. When exceptions shall or in part. Blair v. Core, 20 W. Va. be filed in vacation, the clerk shall 265. Exceptions for insufficiency refer the same to a master. Excep- necessarily assume that the answer is tions filed in term time shall be set valid, and properly before the court, down on the motion docket by the Vermilya v. Christie, 4 Sandf. Ch. (N. party excepting, and be disposed of if Y.) 376. possible during such term. Rev. Code Miss. (1880) sec. 1891. South Carolina. In South Carolina ex- ceptions may be heard and decided by when they are sustained. Mix the court without any reference to a People, 116 111. 265. 906 5. Prettyman v. Barnard, 37 111. 105. This rule, however, applies only when the exceptions are disallowed, not v. Exceptions ANSWERS IN EQUITY PLEADING, to Answers, Reading at Trial. Exceptions to an answer in equity are a part of the pleadings in the case, and as such may be read on the trial. 1 Injunctions. The filing of exceptions is of itself no objection to the dissolution of an injunction ; 2 and a motion to dissolve an in- junction and exceptions to an answer may be taken up and de- cided at the same time. 3 6. Further Answer a. PROCEDURE. If the exceptions taken to the answer are sustained, the proper practice is to take a rule upon the defendant to file a further answer, 4 But he can be required " If interrogatories stated in a bill are not answered, the complainant has a right to except to the answer, and if the interrogatories are proper, the de- fendant will be compelled to answer plainly, fully, and explicitly. If then any material matter, charged in the complainant's bill, has been neither denied nor admitted by the answers, it stands on hearing of the cause for naught." Hanson, C., in Hopkins v. Stump, 2 Har. & J. (Md.) 305. 1. Riggins v. Brown, 12 Ga. 271. 2. The court will consider the excep- tions only for the purpose of ascertain- ing whether they relate to those parts of the bill on which the injunction rests. Stitt v. Hilton, 31 N. J. Eq. 285; Robert v. Hodge, 16 N. J. Eq. 299; Doe v. Roe, Hopk. (N. Y.) 276. Equity of Bill Fully Answered. The filing of exceptions constitutes no ob- jection to the dissolution of an injunc- tion, if the equity of the bill upon which the injunction rests has been fully answered. McGee v. Smith, 16 N. J. Eq. 462. And see Mitchell v. Mitchell, 20 N. J. Eq. 234, in which it is said that the English rule that ex- ceptions, undisposed of, are a bar to the dissolution of an injunction upon the denials of the answer, has not been adopted in N. J. Exceptions Submitted to or Allowed by a Master Exceptions to the answer of one of the defendants, if submitted to by the defendant, or if allowed by a master, are a good answer to a motion to dissolve an injunction, if the excep- tions go to the merits of the case on which the injunction rests. If not sub- mitted to or not allowed by a master, they are no answer to the motion, and the court will look into them and see that they are not frivolous. Noble v. Wilson, I Paige (N. Y.) 164. Notice of Application to Dissolve In- junction. It is irregular for a party to give notice of an application to dis- solve an injunction for a time which is 907 within the ten days allowed by the 38th Rule for excepting to the answer, since, by the 3gth Rule, the motion could not be heard within that time. Satterlee v. Bargy, 3 Paige (N. Y.) 142. But the provisions of the 3gth Rule are not applicable to the case of an answer to which the oath has been waived, and which therefore cannot be excepted to for insufficiency. Liv- ingston v. Livingston, 4 Paige (N. Y.) in. When Motion to Dissolve Injunction May be Made. Exceptions being filed within the time allowed by the 38th Rule, it was not in order to make the motion to dissolve the injunction, on bill and answer, until after the time for obtaining the master's report on the exceptions had expired. Parker v. Wil iams, 4 Paige (N. Y.) 439. 3. Wyckoff v. Cochran, 4 N. J. Eq. 420; Keighler v. Savage Mfg. Co., 12 Md. 383, 71 Am. Dec. 600; Salmon v. Clagett, 3 Bland (Md.) 125; Gibson v. Tilton, i Bland (Md.) 352, 17 Am. Dec. 306; Alexanders. Alexander, MS. Dec. 13, 1817. Injunction Obtained Before Answer Filed. Where the plaintiff before an- swer obtains an injunction, and, when the answer is put in, excepts to the same, he cannot move to refer excep- tions instanter. Candler v. Parting- ton, 6 Madd. 72. 4. Craig v. People, 47 111. 487. The Illinois statute is imperative ; if on ex- ceptions filed an answer is adjudged in- sufficient, the defendant must be ruled to answer further before the cause can be set down for hearing. Holly v. Powell, 63 111. 139; Stone v. Moore, 26 111. 165. Order for Further Answer. " If all the exceptions to the answer are submitted to by the defendant, or a part are sub- mitted to and the rest abandoned, or on a reference to a master are disal- lowed, the complainant may have an order of course that the defendant Exceptions ANSWERS IN EQUITY PLEADING, to Answers. to answer over only so far as the exceptions extend. 1 Filing Further Answer. If the further answer be not filed within the time prescribed, 2 the bill may be taken as confessed. 3 put in a further answer within twenty days after notice of the order, and pay the costs of the exceptions, or that an attachment issue, or that the bill be taken as confessed, at the election of the complainant." i Barb. Ch. Pr. (2d ed.) 193. Answer Cannot be Taken from Files. Even the court cannot order an answer to be taken from the files after excep- tions to it, notwithstanding the an- swer be evasive. In mere matters of form or mistakes of dates, etc., an answer may be taken from the files and amended, but it is not allowed to make any material alterations in it. Fulton County v. Mississippi, etc., R. Co., 21 111. 366. No Right to Further Answer Till Re- port of Master Disposed of. Until ex- ceptions to the report of a master dis- allowing some of the exceptions and allowing others were disposed of by order of court, the complainant had no more right to call for a further answer as to the exceptions allowed than he had before the decision of the court below, disallowing the exceptions to the master's report, was pronounced. New York F. Ins. Co. v. Lawrence, 6 Paige (N. Y.) 511. See Whitney v. Belden, 4 Paige (N. Y.) 140. Before Exceptions for Impertinence Dis- posed of. An order maybe entered for a further answer upon exceptions for insufficiency submitted to, before ex- ceptions for impertinence are disposed of. Lawrence v. Lawrence, 4 Edw. Ch. (N. Y.) 357- 1. Pegg v. Davis, 2 Blackf. (Ind.) 281. Answer May Be Perfected. The de- fendant may, if he chooses, make his answer perfect, though the exceptions do not extend to all the matters in the original answer which might have been objected to as insufficient. Al- derman v. Potter, 6 Paige (N. Y.) 658. And the complainant has no right to treat it as an answer to the excep- tions only; but if the new answer is insufficient, he must file new excep- tions. Hall v. Wood, i Paige (N. Y.) 404. 2. Tennessee. Exceptions filed shall be acted on by the clerk within ten days, and if they are allowed he shall, by letter or otherwise, notify the de- fendant's solicitor to file a sufficient answer within thirty days, from which order the defendant may within said time appeal. Code Tenn. (1884) 5145. Maine. If a further answer be directed, it shall be made within twenty days after notice that it has been directed. 37 Me. 583, Rule 8, Chan. Rules. Florida. The complainant may enter a rule with the clerk that the defend- ant make a better answer before the next succeeding rule day, notice of which rule and the filing of exceptions shall be served upon the defendant or his solicitor. If this rule is not com- plied with the bill may be taken for confessed. Rev. Sts. Fla. (1892) 1417. Time May Be Enlarged. If the de- fendant finds that he is unable to file his further answer within the time prescribed by the master, he may have the time enlarged on application to the court. i Barb. Ch. Pr. (2d ed.) 194. 3. Craig v. People, 47 111. 487; Work v. Hall, 79 111. 196; Mayer v. Tyson, i Bland. (Md.) 559; Lea v. Vanbibber, 6 Humph. (Tenn.) iS^ Code Tenn. (1884) 5150; i Barb. Ch. Pr. (2d ed.) 194. Bill Taken as Confessed. Exceptions had been taken to the answer, but de- fendant had neglected to answer fur- ther. A motion was granted that he answer within thirty days, or that the parts of the bill alleged by the excep- tions to be not sufficiently answered be taken as confessed. Weaver v. Livingston, Hopk. (N. Y.) 595. Refusal to Answer After Second Answer Filed. Where defendant's answer was excepted to for insufficiency, and he made a second answer, which was also excepted to, and the defendant refused to again answer, the bill was taken for confessed as to those parts covered by the exceptions. Cum- mings v. Corey, 58 Mich. 494. Defendant Not Entitled to Same Dis- covery by Pro Confesso Order. If excep- tion to an answer for insufficiency is overruled, the complainant is not en- titled to the same discovery by means of a pro confesso order upon the same 908 Exceptions ANSWERS IN EQUITY PLEADING, to Answers. Further Answer Also Insufficient. If the defendant puts in a further answer, which also is adjudged insufficient, he may, in some juris- dictions, be examined upon interrogatories, being committed until he answers them ; or the complainant may take the bill pro con- fesso. * b. FORM. The form of the further answer is similar to that of the original answer, 2 and it should be prepared, signed, and filed in like manner. 3 c. NEW EXCEPTIONS. New exceptions for insufficiency, founded upon the matter of the original bill, cannot be taken to the further answer. 4 If the further answer is insufficient, it must be referred back upon the old exceptions. 5 ters excepted to, and to supply the de- ficiencies of the first answer. Fulton County v. Mississippi, etc., R. Co., 21 111. 338. 3. i Barb. Ch. Pr. (ad ed.) 197. 4. Bennington Iron Co. v. Camp- bell, 2 Paige (N. Y.) 159. All Exceptions Should be Taken in First Instance. If an answer is insufficient, the complainant must raise all his ob- jections to it in the first instance. He will not be allowed to take exceptions to the further answer which were not taken to the first. Eager v. Wiswall, 2 Paige (N. Y.) 369. Failure to Except to Original Answer. Where the plaintiff had not excepted, and the defendant put in a further an- swer, leave was given to the plaintiff to file exceptions thereto, although he had filed none to the original answer. Atty. Gen. v. London, 12 Beav. 219. 5. i Barb. Ch. Pr. (2d ed.) 196 ; Will- iams v. Davis, i Sim. & Stu. 426. Amended Answer Insufficient. An amended answer being insufficient, the complainant has the right to have it referred to the clerk and master, on the exceptions to the original answer, and it is the duty of the chancellor to require the defendant to put in a full and sufficient answer. Thompson v. Paul, 8 Humph. (Tenn.) 114. Several References on Original Excep- tions. The defendant having submit- ted to the original exceptions, or the same having been allowed by the mas- ter upon a reference thereof, it is too late, upon a reference of a second or third answer for insufficiency on these exceptions, to insist that the original exceptions were not well taken, and that the further discov- ery called for was immaterial. Higbie v. Brown, i Barb. Ch. (N. Y.) 320. grounds of insufficiency. Smith v. St. Louis Mut. L. Ins. Co., 2 Tenn. Ch. 604. Decree Without Regard to Answer Is Error. If a defendant makes full and perfect answer, and upon exceptions thereto the chancellor adjudges it insufficient, and proceeds to decree finally upon the bill and order pro confesso, disregarding the answer, that is error which the Supreme Court will revise. Marsh v. Crawford, i Swan. (Tenn.) 116. 1. Code Va. (1887) sec. 3277; Code W. Va. (1887) p. 790, sec. 55. Third Answer Insufficient. If a third answer is reported insufficient on the original exceptions, the complainant may have an order of course for an at- tachment against the defendant. I Barb. Ch. Pr. (2d ed.) 198. English Practice. After filing four insufficient answers the English prac- tice was to commit the defendant to prison for contempt, and compel him to answer written interrogatories pre- pared by plaintiff's counsel and settled by the master, i Dan. Ch. Pr. (5th ed.) 771 : Farquharson v. Balfour, T. & R. 184; Langdell Eq. PI. 64. 2. "The title of it must correspond with the order under which it is put in; and if there are no amendments, it should be entitled 'The further an- swer of the defendant C. D. to the original bill of complaint of the com- plainant.' If there are amendments, it should be, ' The further answer of the defendant C. D. to the original bill of complaint, and the answer of the same defendant to the amended bill of the complainant.'" I Barb. Ch. Pr. (2d ed.) 197. What is Further Answer. The further answer is understood to mean a formal answer, specially directed to the mat- Answers as ANSWERS IN EQUITY PLEADING. Evidence. Amended Bill. And this principle applies to the answer to an amended bill. 1 Bill stating New Case. But where the amendment causes the bill to state an entirely new case, exceptions may be taken. 2 Amendments Insufficiently Answered. And though exceptions may not be taken to the answer to an amended bill, founded upon matter contained in the original bill, yet they are proper as to those parts of the amendments not sufficiently answered. 3 XIV. ANSWERS AS EVIDENCE 1. Responsive Answers a. IN GENERAL. It is a general rule of equity practice that whatever in the defendant's answer is directly responsive to the complain- ant's bill is evidence for as well as against the defendant. 4 1. Amended Bill. Where exceptions are not taken to the answer to the original bill, they cannot be taken to the answer on an amended bill, on the ground that the original bill was not fully answered. Chazournes v. Mills, 2 Barb. Ch. (N. Y.) 466; Ovey v. Leighton, 2 Sim. & Stu. 234; Wich v. Parker, 22 Beav. 59, 2 Jur. N. S. 582; Denis v. Rochussen, 4 Jur. N. S. 298. But see Glassington v. Thwaites, 2 Russ. 464; also Irving v. Viana, M'Clel. & Y. 563- Objections to an answer to a bill as it stood before amendment cannot be made after amendment, unless the de- fendant, after being duly called upon to file his answer to the bill as amend- ed, or voluntarily waiving such call, chooses to let it stand as an answer to the amended bill. Angel v. Pennsyl- vania R. Co., 37 N. J. Eq. 92. Immaterial Amendment. This prin- ciple does not prevent exceptions being taken to the answer where the amend- ment of the bill consists merely in the substitution of a name, or the addition of another party. Miller v. Wheatley, I Sim. 296; Taylor v. Wrench, 9 Ves. Jr. 315. See also Salisbury v. Miller, 14 Mich. 160. Reason of Rule. The reason of the rule that a plaintiff, if he does not ex- cept to the answer to the original bill, cannot afterwards except to the an- swer of an amended bill, on the ground that the defendant has not answered matters which were contained in the original bill, is that by amending his bill the plaintiff has admitted the an- swer to be sufficient, i Dan. Ch. Pr. <5th ed.) 762. 2. i Dan. Ch. Pr. (5th ed.) 761; Mazarredo v. Maitland, 3 Mad. 72; Partridge v. Haycraft, n Ves. Jr. 581. See also Kaye v. Wall, 4 Hare 128; Duncombe v. Davis, i Hare 193. 3. Partridge v. Haycraft, II Ves. Jr. 570. Exceptions and Amendments Answered Together. Where exceptions to a former answer and amendments to the bill are answered together, if neither the amendments nor exceptions are fully answered, the complainant is only at liberty to file new exceptions founded on the new matter introduced into the bill by such amendments. The answer will then be referred on the new exceptions, and upon such of the old exceptions as are specified in the order of reference. Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159. See Hart v. Small, 4 Paige (N. Y.) 333. Time. Under the soth Rule the com- plainant has twenty days to file new exceptions to a further answer as re- spects the amendments. Van Wagenen v. Murray, i Edw. Ch. (N. Y.) 319. 4. Michigan. Schwarz v. Wendell, Walk. (Mich.) 267. New York. Woodcock v. Bennet, I Cow. (N. Y.) 743; Forrest v. Forrest, 6 Duer (N. Y.) 129; Benson v. LeRoy, I Paige (N. Y.) 122. New Jersey. Fisler v. Porch, 10 N. J. Eq. 249. Pennsylvania. Com. v. Cullen, 13 Pa. St. 143, 53 Am. Dec. 450. Maryland. Jones v. Slubey, 5 Har. & J. (Md.) 372; Ringgold v. Ringgold, i Har. & J. (Md.) n, 18 Am. Dec. 250; Hardy v. Summers, 10 Gill & J. (Md.) 316, 32 Am. Dec. 167 ; Stewart v. Duvall, 7 Gill & J. (Md.) 179; Dilly v. Barnard, 8 Gill & J. (Md.) 170. Tennessee. Spurlockz/. Fulks, I Swan (Tenn.) 289; Jones v. Perry, 10 Yerg. (Tenn.) 59, 30 Am. Dec. 430; Ragsdale v. Beaufort, 3 Hayw. (Tenn.) 192. 910 Answers as ANSWERS JN EQUITY PLEADING. Evidence. Charging and stating Part of Bill. Thus whatever in an answer is fairly a reply to the general scope of the claim set up in the bill, Alabama. Grier v. Campbell, 21 Ala. 327; Danforth v. Laney, 28 Ala. 274 ; Hogan v. Smith, 16 Ala. 600 ; Walthall v. Rives, 34 Ala. 91. Georgia. Laughlin v. Greene, 13 Ga. 359. Mississippi. Oakey v. Rabb, Freem. Ch. (Miss.) 546. North Carolina. Lyerly v. Wheeler, 3 Ired. Eq. (N. Car.) 599; Chaffin v. Chaffin, 2 Dev. & B. Eq. (N. Car.) 255; Hughes v. Blackwell, 6 Jones Eq. . Ashley, 8 Ark. 290; Walker v. Scott, 13 Ark. 644; Byers v. Fowler, 12 Ark. 286, 54 Am. Dec. 287; Roberts v. Totten, 13 Ark. 609; Pelham v. More- land, n Ark. 442; Scott v. Henry, 13 Ark. 112; Wheat v. Moss, 16 Ark. 243; Whiting v. Beebe, 12 Ark. 588; Mag- niss v. Arnold, 31 Ark. 103. Connecticut. Marion v. Faxon, 20 Conn. 486. Delaware. Merriken v. Godwin, 2 Del. Ch. 236. Florida. Simpson v. Barnard, 5 Fla. 528. Kentucky. Thurstall v. McClelland, 3 Ky. 528; Vance v. Vance, 5 T. B. Mon. (Ky.) 521; Prior v. Richards, 4 Bibb (Ky.) 356; Lampton v. Lampton, 6 T. B. Mon. (Ky.) 620; Carter v. Leeper, 5 Dana (Ky.) 263; At wood v. Harrison, 5 J. J. Marsh. (Ky.) 329 ; Todd -v. Sterrett, 6 J. J. Marsh. (Ky.) 425; Lyon -v. Respass, i Litt. (Ky.) 133; Chinowith v. Williamson, 2 Bibb (Ky.) 38; Ballinger v. Worley, i Bibb (Ky.) 195 ; Reading v. Ford, I Bibb (Ky.) 338. Georgia. Cartledge v. Cutliff, 29 Ga. 920 Answers as ANSWERS IN EQUITY PLEADING. Evidence. Illustrations. Thus where the answer alleges payment of a de- mand sought to be enforced by bill, the answer is of no effect as (Miss.) 375; Jack v. State, 14 Miss. 494- _ Michigan. Hart v. Carpenter, 36 Mich. 402; Schwarz v. Wendell, Walk. (Mich.) 267; Hunt v. Thorn, 2 Mich. 213 ; Atty. Gen'l v. Oakland County Bank, Walk. (Mich.) 90; Millerd v. Ramsdell, Harr. Ch. (Mich.) 373; Van Dyke v. Davis, 2 Mich. 144; Newlove v. Callaghan, 86 Mich. 301. New Jersey. Hutchinson v. Tindall, 3 N. J. Eq. 357; Beckhaus v. Ladner (N. J.), 21 Atl. Rep. 724; Lovett v. Demarest, 5 N. J. Eq. 113; Roberts v. Birgess, 20 N. J. Eq. 139; Dickey v. Allen, 2 N. J. Eq. 40; Winans v. Wi- nans, 19 N. J. Eq. 220: Fisler v. Porch, 10 N. J. Eq. 243; Voorhees z'.Voorhees, 18 N. J. Eq. 223; Miller v. Wack, i N. J. Eq. 204; Neville v. Demeritt, 2 N. J. Eq. 321; Bray v. Hartough, 4 N. J. Eq. 46; Vanderhoof v. Clayton, 6 N. J. Eq. 192; Stevens -v. Post, 12 N. J. Eq. 408; Miller v. Gregory, 16 N. J. Eq. 274; Huffman v. Hummer, 17 N. J. Eq. 263; Van Dyke v. Van Dyke, 26 N. J. Eq. 180; Ingersoll v. Stiger, 46 N. J. Eq. 511; Brown v. Kahweiler, 28 N. J. Eq. 311 ; Morris Canal, etc., Co. v. Jersey City, 12 N. J. Eq. 228; Green v. Pallas, 12 N. J. Eq. 267; Butlers. Society, etc., 12 N. J. Eq. 264 ; Fey -v. Fey, 27 N. J. Eq. 213. North Carolina. Woodall v. Prevatt, 1 Busb. Eq. (N. Car.) 199; Jones v. Jones, i Ired. Eq. (N. Car.) 332; John- son v. Person, i Dev. Eq. (N. Car.) 368; Salter v. Spier, i Tayl. (N. Car.) 318; Lyerly v. Wheeler, 3 Ired. Eq. (N. Car.) 599; Fleming v. Murph, 6 Jo. Eq. (N. Car.) 59- New York. Simpson v. Hart, 14 Johns. (N. Y.) 63; Wakeman -v. Grover, 4 Paige (N. Y.) 23; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 89; Atwater v. Fowler, i Edw. Ch. (N. Y.) 417; Green v. Hart, i Johns. (N. Y.) 480; Dunham v. Jackson, 6 Wend. (N. Y.) 30; Bush v. Livingston, 2 Cai. Cas. (N. Y.)66, 2 Am. Dec. 316; Minturn v. Seymour, 4 Johns. Ch. (N. Y.)4gg; Anderson v. Roberts, 18 Johns. (N. Y.) 543, 9 Am. Dec. 235. New Hampshire. Bellows v. Stone, 18 N. H.465; Miles v. Miles, 32 N. H. 147, 64 Am. Dec. 362; Busby v. Little- field, 33 N. H. 76; Rogers v. Mitchell, 41 N. H. 154. Ohio. Harris v. Carlisle, 7 Ohio 758; Neal v. Patten, 40 Ga. 363; Lee v. Baldwin, 10 Ga. 208. But see Laughlin v. Greene, 13 Ga. 359. Illinois. Cooper v. Tiler, 46 111. 462; Chambers v. Warren, 13 111. 318; Rob- erts v. Stigleman, 78 111. 120; O'Brian v. Fry, 82 I1J. 274 ; Lynn v. Lynn, 10 111. 602; Walton v. Walton, 70 111. 142; Cole v. Shetterly, 13 111. App. 420; Cum- mins v. Cummins, 15 111. 33; Brown v. Welch, 18 111. 343, 68 Am. Dec. 549; Mahoney v. Mahoney, 65 111. 406; Harding v. Hawkins, 141 111. 572; Stark v. Hillibert, 19 111. 343. Indiana. Clark v. Spears, 7 Blackf. (Ind.) 96; Pierce v. Gates, 7 Blackf. (Ind.) 162 ; Green v. Vardiman, 2 Blackf. (Ind.) 324; Wasson v. Gould, 3 Blackf. (Ind.) 18. Iowa. Gilbert v. Mosier, u Iowa 498; Schaffner v. Grutzmacher, 6 Iowa 137- Maine. Buck v. Swazey, 35 Me. 41, 56 Am. Dec. 681; Bradley v. Webb, 53 Me. 462; O'Brien v. Elliot, 15 Me. 125, 32 Am. Dec. 137; Gould v. Williamson, 21 Me. 273; Peaks v. McAvey (Me., 1886), 7 Atl. Rep. 270; Gilmore v. Pat- terson, 36 Me. 544. Massachusetts. New England Bank v. Lewis, 8 Pick. (Mass.) 113; Leach v. Fobes, u Gray (Mass.) 509, 71 Am. Dec. 732. Maryland. Ringgold v. Ringgold, I Har. & J. (Md.) 29, 18 Am. Dec. 250; Maccubbin v. Cromwell, 7 Gill & J. (Md.) 157; Alexander v. Ghiselin, 5 Gill (Md.) 138; Hagthorp v. Hook, I Gill & J. (Md.) 272; Fitzhugh v. Me Pherson, 3 Gill (Md.) 408; Gardiner v. Hardey, 12 Gill & J. (Md.)3&5; Cecil v. Cecil, 19 Md. 72, 81 Am. Dec. 626 ; Salmon v. Clagett, 3 Bland (Md.) 162; McNeal v. Glenn. 4 Md. 87; Jones v. Belt, 2 Gill (Md.) 106. Mississippi. Mitchell v. Tishomingo Saving Inst., 53 Miss. 613; Williams v. Cammack, 27 Miss. 209, 61 Am. Dec. 508 ; Dease v. Moody, 31 Miss. 617; Brooks v. Gillis, 12 Smed. & M. (Miss.) 538 ; Planters' Bank v. Stockman, Freem. Ch. (Miss.) 502 ; Wofford v. Ashcraft, 47 Miss. 645; Parmele v. McGinty, 52 Miss. 483; Park v. Bam- berger, 52 Miss. 569; Miller v. Lamar, 43 Miss. 383; Liddell v. Sims, 9 Smed. & M. (Miss.) 596; Planters' Bank v. Courtney, i Smed. & M. Ch. (Miss.) 40; Greenleaf v. Highland, I Walk. 921 Answers as ANSWERS IN EQUITY PLEADING. Evidence. evidence of such alleged payment which must be established by independent proof. 1 Usury set up by answer as a defense must (Part II) 120 ; Methodist Episcopal Church v. Wood, 5 Ohio 283. Pennsylvania. Baker v. Williamson, 4 Pa. St. 467; Pusey v. Wright, 31 Pa. St. 387; Coleman v. Ross, 46 Pa. St. 180; Vollmer's Appeal, 61 Pa. St. 118; Ken- ney's Appeal (Pa., 1888), 12 Atl. Rep. 589; Luburg's Appeal (Pa., 1889), 17 Atl. Rep. 245; Com. v. Cullen, 13 Pa. St. 143, 53 Am. Dec. 450. South Carolina. Reeves v. Tucker, 5 Rich. Eq. (S. Car.) 150; Gordon v. Saunders, 2 McCord Eq. (S. Car.) 156; Cloud v. Calhoun, 2 Rich. Eq. (S. Car.) 358; Dyre v. Sturges, 3 Desaus. Eq. (S. Car.) 553; Walker v. Berry, 8 Rich. (S. Car) 33; Ison v. Ison, 5 Rich. Eq. (S. Car.) 15. Rhode Island. Ives v. Hazard, 4 R. I. 14, 67 Am. Dec. 500. Tennessee. -~- Wolfe v. Cawood, I Heisk. (Tenn.) 597; Alexander v. Wal- lace, 10 Yerg. (Tenn.) 105; Cocke v. Trotter, 10 Yerg. (Tenn.) 213; Wallen v. Huff, 5 Humph. (Tenn.) 91; Beech v. Haynes, i Tenn. Ch. 569; Gass v. Simpson, 4 Coldw. (Tenn.) 288; Napier v. Elam, 6 Yerg. (Tenn.) 108; Davis v. Clayton, 5 Humph. (Tenn.) 446; Rol- lings v. Gate, I Heisk. (Tenn.) 97; Barker v. McAuley, 4 Heisk. (Tenn.) 424 ; Dodson v. Dodson, 6 Heisk. (Tenn.) no; Gass v. Arnold, 6 Baxt. (Tenn.) 329; Humphreys County v. Mc- Adoo, 7 Heisk. (Tenn.) 586. Texas. Jouett v. Jouett, 3 Tex. 150; Chassaign v. Helzel, 3 Tex. 57. Vermont. Allen v. Mower, 17 Vt. 61 ; Mott v. Harrington, 12 Vt. iggfPierson u. Clayes, 15 Vt. 93; Wells v. Houston, 37 Vt. 245; McDaniels v. Barnum, 5 Vt. 279; McDonald v. McDonald, 16 Vt. 630; Sanborn v. Kittredge, 20 Vt. 632, 50 Am. Dec. 58; Cannon v. Norton, 14 Vt. 178; Lane v. Marshall, 15 Vt. 85; Adams v. Adams, 22 Vt. 50; Spaulding v. Holmes, 25 Vt. 491. Virginia. Purcellz/. Purcell, 4 Hen. & M. (Va.) 511; Beckwith v. Butler, i Wash. (Va.) 224; Kerr v. Love, i Wash. (Va.) 172; Paynes v. Coles, i Munf. (Va.) 373; Leas v. Eidson, 9 Gratt. (Va.) 277; Lewis v. Mason, 84 Va. 731; Vathir v. Zane, 6 Gratt. (Va.) 246. Wisconsin. Parish v. Gear, i Pin. (Wis.) 261 ; Garlick v. M'Arthur, 6 Wis. 450; Sheldon v. Sheldon, 3 Wis. 699; Remington v. Willard, 15 Wis. 583; Smith v. Potter, 3 Wis. 432; Wal- ton v. Cody, i Wis. 420; Williams v. Starr, 5 Wis. 534. West Virginia. Jones v. Cunning- ham, 7 W. Va. 707; Fluharty v. Beatty, 4 W. Va. 525- United States. Hughes v. Blake, 6 Wheat. (U. S.) 464; Clements v. Moore, 6 Wall. (U. S.) 315; Seitz' v. Mitchell, 94 U. S. 580; Tobin v. Walkinshaw, I McAll (U. S.) 26; Randall v. Phillips, 3 Mason (U. S.) 378; Flagg v. Mann, 2 Sumn. (U. S.) 487; Reid v. McCallister, 49 Fed. Rep. 16; Clarke -v. White, 12 Pet. (U. S.) 190; U. S. Bank v. Bever- ley, i How. (U. S.) 134; Gaines v. Hennen, 24 How. (U. S.) 559; McCoy v. Rhodes, u How. (U. S.) 141; Howe v. Williams, 2 Cliff. (U. S.) 261; U. S. v. Parrott, I McAll (U. S.) 271; Robin- son v. Cathcart, 3 Cranch (C. C.) 379; Tilghman v. Tilghman, Baldw. (U. S.) 464. England. Thompson v. Lambe, 7 Ves. 587; Boardman v. Jackson, 2 B. & B. 382; Ormond v. Hutchinson, 13 Ves. 47. 1. Defendant in summary process, served with interrogatories to answer " whether he had purchased the goods charged in the account sued on, on credit, and at the prices charged," an- swered that he had, but had paid the account. Held, that the plaintiff was entitled to a decree, the defendant's answer as to payment not being evi- dence for him. Walker v. Berry, 8 Rich. (S. Car.) 33. If a bill charge that defendant exe- cuted a bond and the answer sets up payment, that allegation must be proven. Nichols v. Daniels, Walk. (Miss.) 224. Where a bill was brought to procure a settlement of a partnership account, and the answer, admitting the partner- ship, averred a settlement of the part- nership accounts, held, that such averment was by way of defense and in the nature of a plea, and was not responsive, and so was not evidence, but must be proved by evidence aliunde. Spaulding v. Holmes, 25 Vt. 491. Where an answer alleges payment and set-off to the plaintiff's demand, proof thereof should be required, especially where the answer is in no part taken for confessed. Hickmaa v. Painter, n W. Va. 386. 922 Answers as ANSWERS IN EQUITY PLEADING. Evidence. be proved. 1 And an answer alleging cancellation or agreement to cancel the instrument in suit sets up new matter which must be proved. 2 Qualifications of Rule. This rule is in some jurisdictions, at least, qualified to the extent that if the facts alleged in avoidance or discharge are responsive to a direct charge or interrogatory in the bill the answer is evidence of such fact. 3 So, also, it seems that, Where plaintiff's claim as set forth in the bill rests upon a written con- tract and the right of action is not barred by lapse of time, the admis- sion of the contract in the answer, and the allegation of payment or of any other matter merely in discharge, are to be treated as distinct, and the an- swer is not evidence of the latter, but must be proved otherwise. Adams v. Adams, 22 Vt. 50. Under a Bill for Settlement and Account of an assignment for the benefit of creditors, where the trustee alleges in his answer that the assignor, with full knowledge of all the facts, assented to a settlement of a debt by receiving lands in payment, this is matter in avoidance and requires evidence aliunde to sustain it. Royal v. Mc- Kenzie, 25 Ala. 363. A Bill for the Settlement of an Intestate's Estate sought to charge the defendant with a stallion as an advancement; the defendant's answer admitted the gift, and alleged that he had paid his father for it. Held, that the defendant's an- swer, being in avoidance, was not evi- dence for him. Ison v. Ison, 5 Rich. Eq. (S. Car.) 15. 1. To a bill of foreclosure, the an- swer of the defendant setting forth usury in the mortgage as a defense is not to be taken as evidence for him, unless complainant asks for a dis- closure on that subject, but it is only equivalent to a plea of the statute of usury. McDaniels v. Barnum, 5 Vt. 279. ' Where complainant, in his bill, in- quired as to the consideration of a note, but asked nothing as to usury, and defendant in his answer alleged usury, complainant's note was held prima- facie evidence of a full and adequate consideration, and the answer was held not to be evidence of the usury which ought to be proved. Green v. Hart, i Johns. (N. Y.) 480. 2. Where an answer acknowledges an assignment set up in the bill, but alleges that it has been cancelled, the answer is not evidence of the cancella- tion, but it must be proved. Wasson v. Gould, 3 Blackf. (Ind.) iS. Where defendant in a bill to fore- close a mortgage answer under oath, admitting the execution of the mort- gage, but alleging that it was given in lieu of another mortgage, that com- plainant agreed to cancel and return to defendant, which he failed to do, and praying that he may be compelled to so cancel and return it before the relief sought is granted, the answer is evidence only so far as it is responsive to the bill, and the burden is upon de- fendant to establish the alleged agree- ment which is new matter by othar evidence. Ingersoll v. Stiger, 46 N. J. Eq. 511. Discharge of Lien Sought to be En- forced. On a bill to enforce a vendor's lien, it appeared by the answer that the original notes given for the pur- chase-money had been taken up, and new ones given in satisfaction and dis- charge of the vendor's lien. Held, that although the answer was only evi- dence of the complainant connecting the present notes with the deed under which the lien was claimed, the part of the answer alleging a discharge of the lien was not evidence. Planters' Bank v. Courtney, i Smed. & M. Ch. (Miss.) 40. 3. Shown z/. McMackin,gLea(Tenn.) 601, 42 Am. Rep. 680; Beech v. Haynes, 1 Tenn. Ch. 569: Hopkins v. Spurlock, 2 Heisk. (Tenn.) 152; Alexander v. Wallace, 10 Yerg. (Tenn.) 105; Walter v. McNabb, i Heisk. (Tenn.) 709; Gass v. Simpson, 4Coldw. (Tenn.)288; Pugh v. Pugh, 9 Ind. 132; Green v. Vardi- man, 2 Blackf. (Ind.) 324; Nash v. Hall, 4 Ind. 449; Smith v. Clark, 4 Paige (N. Y.) 373; Woodcock v. Ben- net, i Cow. (N. Y.) 744; Simpson v. Hart, 14 Johns. (N. Y.) 63; Lyons v. Miller, 6 Gratt. (Va.) 427, 52 Am. Dec. 129; Fant v. Miller, 17 Gratt. (Va.) 187. In Alabama it has been held that the answer of a defenda-nt admitting the 9 2 3 Answers as ANSWERS IN EQUITY PLEADING. ETidence. where the answer admits facts which charge the defendant and in addition sets up matter which discharges him, the latter is evidence for defendant if the charge and discharge arise out of one trans- action. 1 The early decisions even went so far as to hold that a discharge in the same sentence with the charge would be evidence when it would not have been if stated separately, on the ground that the whole context must be read. a This doctrine no longer obtains; and if the matter in avoidance has been interwoven into the sentence containing responsive admissions, it will be con- sidered as stricken out. 3 3. Hearing on Bill and Answer. Where a suit in equity is set down for hearing on bill and answer alone, the general rule is that the answer is to be considered as true in all its allegations, whether responsive or not, on the ground that complainant's fail- ure to put in issue by replication the facts alleged in the answer would preclude defendant from proving them. 4 indebtedness originally charged in the bill, but alleging payment, if responsive to the allegations and interrogatories, is at least prima-facic evidence for the party making it, if not absolute proof of the facts stated, so as to require the usual countervailing^ proof in cases necessary to outweigh an answer in chancery. King v. Payan, 18 Ark. 583. See also Wheat v. Moss, i6Ark. 241. 1. Cooper v. Tappan, 9 Wis. 364; Green v. Vardiman, 2 Blackf.- (Ind.) 325; Beech v. Haynes, i Tenn. Ch. 569; Robinsons. Scotney, 19 Ves. 582; Ormond v. Hutchinson, 13 Ves, 47. See also Neal v. Robinson, 8 Humph. (Tenn.) 435; Bartlett -v. Gillard, 3 Russ. 15; Thompsons. Lambe, 7 Ves. 588. In Green v. Vardiman, 2 Blackf. (Ind.) 330, the court said: " Where an answer is confined to such facts as are necessarily required by the bill and those that are necessarily connected with them forming a part of the same transaction, the answer is to be taken as true when it discharges as well as where it charges defendant." In Beech v. Haynes, i Tenn. Ch. 570, the court said' " A qualification of the general rule is that when the transaction is a continuous one and the matters of charge and discharge occur at the same time, the whole statement must be taken together. See also Tighlman z>. Tighlman, Baldw. (U. S.)464. 2. Beech v. Haynes, i Tenn. Ch. 571, citing Ridge way v. Darwin, 7 Ves. 404; Thompson v. Lambe. 7 Ves. 404. 3. Beech v. Haynes, i Tenn. Ch. 571, citing McCoy v. Rhodes, u How. (U. S.) 131 ; Baker v. Williamson, 4 Pa. St. 467. 4. Alabama. Lampley v. Weed, 27 Ala. 621; Lowry v. Armstrong, 3 Stew. & P. (Ala.) 297; Cherry v. Belcher, 5 Stew. & P. (Ala.) 134; Pauling v. Stur- gis, 3 Stew. & P. (Ala.) 95. Arkansas. Hannah v. Carrington, 18 Ark. 85. Florida. Carr v. Thomas, 18 Fla. 736; White v. Walker, 5 Fla. 478; Simpson v. Barnard, 5 Fla. 528; Ste- phens v. Orman, 10 Fla. 9. District of Columbia, Birdsall v. Welch, 6 D. C. 316. Georgia. Baldwin v. Lee, 7 Ga. 186. Illinois. Prettyman v. Barnard, 37 111. 105; Derby v. Gage, 38 111. 27; Trout v. Emmons, 29 111. 433; Buntain v. Wood, 29 111. 504; Mason v. Mc- Girr, 28 111. 322; De Wolf v. Long, 7 111. 679; Fordyce v. Shriver, 115 111. 530; Cook County v. Great Western R. Co., 119 111. 218; Cassell v. Ross, 33 111. 244, 85 Am. Dec. 270; Knapp v. Gass, 63 111. 492; Kitchell v. Burgwin, 21 111. 40; Paine v. Frazier, 5 111. 55. Where no replication to a sworn answer is filed, and defendant treats the cause as at issue, and joins in tak- ing the depositions of witnesses, and consents to set down the cause for hearing on the bill, answer, exhibits, and depositions, he cannot then, on error, invoke the statute in his favor, which provides that, in default of fil- ing a replication, the cause may be set for hearing upon r ^ bill and answer, in which case t.ae answer 924 Answers as ANSWERS IN EQUITY PLEADING. Evidence. Even though Replication be Filed, if the cause is set down for hearing 1894), 58 N. W. Rep. 1002; Ruhlig v. Wiegert, 49 Mich. 399; Durfee v. Mc- Clurg, 6 Mich. 223; Davenport v. Auditor Gen'l, 70 Mich. 192. New Jersey. N. J. Ch. Act, 38; McCully v. Peel, 42 N. J. Eq. 493; Reed v. Reed. i6N. J. Eq. 248; Gaskill v. Sine, 13 N. J. Eq. 130; Cammann v. Traphagen, I N. J. Eq. 28; Taylor v. Thomas, 5 N. J. Eq. 331; Allen v. Cole, 9 N. J. Eq. 286; Fowler v. Roe, ii N. J. Eq. 367; Force v. Dutcher, 17 N. J. Eq. 165; Graham v. Berryman, 19 N. J. Eq. 29, 574; Winslow v. Hud- son, 21 N. J. Eq. 172; Hoff v. Burd, 17 N. J. Eq. 201; Booraem v. Wells, 19 N. J. Eq. 87; Morris, etc., R. Co. v. Blair, 9 N. J. Eq. 635; Thomas v. De- Baum, 14 N. J. Eq. 37; Belford v. Crane, 16 N. J. Eq. 265. 84 Am. Dec. 155; Vanderveer v. Holcomb, 17 N. J. Eq. 547; Bunker v. Anderson, 32 N. J. Eq. 35; Doremus v. Cameron, 49 N. J. Eq. I. Vermont. Doolittle v. Gookin, 10 Vt. 265; Slason v. Wright, 14 Vt. 218; Wright v. Bates, 13 Vt. 341; Gates v. Adams, 24 Vt. 70. Virginia. Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. Dec. 761; Kennedy v. Baylor, i Wash. (Va.) 162; Pickett v. Chilton, 5 Munf. (Va.) 467, Findlay v. Smith, 6 Munf. (Va.) 142, 8 Am. Dec. 733; Blanton v. Brackett, 5 Call (Va.) 232. West Virginia. Copeland z/.McCue, 5 W. Va. 264; Cleggett v. Kittle, 6 W. Va. 452; Bierne v. Ray, 37 W. Va. 571; Snyder v. Martin, 17 W. Va. 276; Martin v. Rellehan, 3 W. Va. 480. Wisconsin. Walton v. Cody, i Wis. 420. United States. U. S. v. Scott, 3 Woods (U. S.) 334; Woodruff v. Du- buque, etc., R. Co., 30 Fed. Rep. 91; U. S. v. Trans-Missouri Freight Assoc., 58 Fed. Rep. 58, 7 C. C. A. 15; Peirce v. West, i Pet. (C. C.) 355; Getting v. Burch, 9 Cranch (U. S.) 372; Leeds v. Marine Ins. Co., 2 Wheat. (U. S.) 380. Contra, Gunnell v. Bjrd, 10 Wall. (U. S.) 304, in which it was held that an allegation in a bill evidently impertinent to the bill cannot be used as evidence for defendant even though no replication be filed. England. Barker v. Wyld, I Vern. 140; Grosvenor v. Cartwright, 2 Ch. Cas. 21 r Wrottesley v. Bendish, 3 P. Wms. 237, n.; Wrights/. Nutt, 3 Bro, C. C. 339- shall be taken as true; and no evi- dence shall be received unless it may be matter of record to which the answer refers. Marple v. Scott, 41 111. 50. See also Corbus v. Teed, 69 111. 206. When new answers are filed after replication, without leave or order of the court, and the cause is heard with- out any replication to the new answers, they wilt not be taken as true, but will be disregarded. Roberts v. Stigle- man, 78 111. 120. Indiana. Hale v. Plummer, 6 Ind. 121. Iowa. Childs v. Horr, I Iowa 432; Westfall v. Lee, 7 Iowa 12; Jones v. Jones, 13 Iowa 276. Kentucky. Scott v. Clarkson, I Bibb (Ky.) 277; Scott v. Cook, 4 T. B. Mon. (Ky.) 280; Myers v. Baker, Hardin (Ky.) 553. Maine. Dascomb v. Marston, 80 Me. 223. Maryland. Eversole v. Maull, 50 Md. 96; Warren v. Twilley, 10 Md. 39; Mickle v. Cross, 10 Md. 352; Estep v. Watkins, i Bland (Md.) 488; Salmon v. Clagett, 3 Bland (Md.) 141; Contee v. Dawson, 2 Bland (Md.) 264; Ware v. Richardson, 3 Md. 505; McKim v. Odom, 3 Bland (Md.) 407; Mason v. Martin, 4 Md. 124. Massachusetts. Copeland v. Crane, 9 Pick. (Mass.) 73; Tainter v. Clarke, 5 Allen (Mass.) 66; Perkins v. Nichols, II Allen (Mass.) 542. New Hampshire. Rogers v. Mitch- ell, 41 N. H. 154- Mississippi. Russell v. Moffitt, 6 How. (Miss.) 303. New York. Atkinson v. Manks, i Cow. (N. Y.) 703; Green v. Hart, I Johns. (N. Y.) 580; Dale v. M'Evers, 2 Cow. (N. Y.) 118; Brinckerhoff v. Brown, 7 Johns. Ch.(N. Y.) 217; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 88. North Carolina. White v. Green, I Ired. Eq. (N. Car.) 45. Ohio. Gwin v. Sedley, 5 Ohio St. 96; Richards^. Friedly, Wright (Ohio) 753- Pennsylvania. Nagleie's Estate, 52 Pa. St. 154; Russell's Appeal, 34 Pa. St. 258; Thomas v. Ellmaker, i Pars. Eq. Cas. (Pa.) 98; Conrad's Estate, 36 Leg. Int. (Pa.) 84; Randolph's Ap- peal, 66 Pa. St. 178; Hengst's Appeal, 24 Pa. St. 413; Mazet v. Pittsburg, 137 Pa. St. 548. Michigan. Huyck v. Bailey (Mich., 9 2 5 Answers as ANSWERS IN EQUITY PLEADING. Evidence. on bill and answer, the answer must be taken as true in a! 1 Vts parts, notwithstanding the replication. 1 Statutory Change of Eule. By statutory enactment in some jurisdic- tions, the general rule as above stated has been altered, and the answer will not be considered true when heard on bill and answer alone. 2 4. Hearing on Bill, Answer, and Replication. If a cause be set down for hearing on bill, answer, and replication, without proofs, the answer will be taken as true only so far as it is responsive to the allegations of the bill. If it set up matters by way of defense or avoidance of complainant's demand, such matters must be proved or they will not be considered. 3 1. Moore v. Hylton, i Dev. Eq. (N. Car.) 433. 2. Thus in Alabama when the cause is heard on bill and answer without testimony, the answer must be taken to be true "so far as it is responsive to the allegations of the bill," except in those cases where the complainant has waived the oath of the defendant to the answer. Code Ala. 1886, 3445 ; Bates v. Murphy, 2 Stew. & P. (Ala.) 165; Keiffer z/. Barney, 31 Ala. 192; Frazer v. Lee, 42 Ala. 25; Marks v. Cowles, 61 Ala. 309; Wynn v. Rosette, 66 Ala. 517; Green v. Casey, 70 Ala. 417; Buchanan v. Buchanan, 72 Ala. 56; Foxworth v. White, 72 Ala. 231. When a cause is heard upon the bill and exhibit to the bill, the answer and exhibits to the answer of one of the defendants, and a decree pro confesso against the other defendant, and the complainant has waived the oath of the defendants to the answer, and there is no testimony taken by any of the parties, "and the answer sub- mitted on the hearing is a responsive denial of all the grounds of equity alleged in the bill," such an answer must prevail against the bill. Latham v. Staples, 46 Ala. 462. Hearing on Bill and Answer by Con- sent. Facts stated in an answer as a defense to the bill, which are not re- sponsive to it, will not be taken as true, unless the cause is heard on bill and answer, by consent. Forrest v. Rob- inson, 2 Ala. 215. The defendant having answered the bill, but no testimony being taken, the parties agreed in writing that the com- piainants were heirs as described in the bill, and to submit the cause to the chancellor, which was done. Held, that this was a hearing on bill and answerby consent, and that the answer must be taken as true in all respects. White v. Florence Bridge Co., 4 Ala. 464. Cause Set for Hearing on Complain- ant' s Motion. Facts stated in an an- swer which are not responsive to the bill will not be taken as true on a hearing on bill and answer, unless the cause is set for a hearing on bill and answer upon complainant's motion without any indication of an intention to contest the facts. McGowen v. Young, 2 Stew. & P. (Ala.) 160; Lucas v. Bank of Darien, 2 Stew. (Ala.) 280. In Kentucky an answer in chancery, when not responsive to the bill, is not to be taken as true, because no repli- cation is filed to it, since the passage of the act of assembly dispensing with replications. 1815. Wells v. Query, Litt. Sel. Cas. (Ky.) 210. In Mississippi the necessity of filing replications has been done away with by statute, Ann. Code 1892, 540; and where a cause is brought to a hearing on bill and answer, without replication, this is not ground for taking the an- swer as true to its full extent, unless it appears to have been set down for hearing at the instance of the com- plainant. Carman v. Watson, i How. (Miss.) 333. 3. Voorhees v. Voorhees, 18 N. J. Eq. 223; Wilkinson v. Bauerle. 41 N. J. Eq. 635; Cooper v. Tappan, 9 Wis. 361; Coulson -v. Coulson, 5 Wis. 79; Walton v. Cody, I Wis. 420; Parish v. Gear, i Pin. (Wis.) 261; Farmers', etc.. Bank v. Griffith, 2 Wis. 443; Smith v. Patton, 12 W. Va. 541; Reece v. Darby, 5 111. 160; Edwards v. Beaird, I 111. 70; Winkler v. Winkler, 40 111. 183. Cummins v. Cummins, 15 111. 33; Nag- lee's Estate, 52 Pa. St. 154; Patton v. Brunswick (Fla.. 1887), 2 So. Rep. 366; 926 Answers as ANSWERS IN Q VI 2^ Y PLEADING. Evidence. 5. Admissions in Answer a. IN GENERAL Conclusive. Where a fact is alleged in a bill and admitted in the answer, the admission is conclusive. 1 The facts admitted are not in issue, and so need Sneed v. Town, 9 Ark. 535; U. S. v. Ferguson, 54 Fed. Rep. 28; Bartlett v. Gillard, 3 Russ. 149; Freeman v. Tatham, 5 Hare 329. Illustrations of Kule. In a proceeding against a testamentary guardian for an account, he answered admitting some assets, and then stated and set up an account for maintenance, education, and expenses exceeding the assets. The cause was heard on bill, answer and replication, and exhibits, without any proofs. Held, error to dismiss the bill, since the answer was not evidence of the matters set up in discharge. Cummins v. Cummins, 15 111. 33. Where a suit in equity is heard on bill, answer, and replication, and the answer denies the material allegations of the bill, the answer will be taken as true and the bill dismissed. U. S. v. Ferguson, 54 Fed. Rep. 28; Patton v. Brunswick (Fla., 1887) 2 So. Rep. 366. Where a new defendant is brought in by supplemental bill after issue joined and after the proofs are taken, and he answered both the original and supple- mental bills, and complainant goes to hearing without further proof, the proofs previously taken cannot be used against the answer to the supplemental bill, and such answer must be taken to be true. Hopkins v. McLaren, 4 Cow. (N. Y.)667. Dismissal of Bill. Where a cause is heard on bill, answer, and replication without proofs, the bill should be dis- missed unless there is enough admitted in the answer to sustain it, because everything in the answer responsive to the bill is to be taken as true unless it defeats and destroys itself. Cooper v. Tappan, 9 Wis. 361. When Answer Deemed Replied to. Where a case was submitted by agree- ment, as upon bill, answer, and gen- eral replication, though no general replication be in fact filed, yet it should be heard and decided accord- ing to the terms of the agreement. The answer is considered as replied to. Glenn v. Hebb, 12 Gill & J. (Md.) 271. 1. Home Ins., etc., Co. v. Myer, 93 111. 271; Weider v. Clark, 27 111. 251. When the answer admits a fact and is responsive to the bill, the answer must be disproved by the complainant, if he would avoid the effect of the ad- mission; but if it be necessary for the defense to avoid it. and the answer sets up new matter in avoidance, such new matter must be proved aliunde. Harris v. Carlisle, 7 Ohio, pt. 2, 144: Brown v. Cutler, 8 Ohio 142. If an answer positively admits a fact alleged in the bill, it cannot be dis- proved by the evidence of a witness. Toney v. Moore, 4 Stew. & P. (Ala.) 347- Answer of Insurance Company. The rule that an admission in defendant's answer is conclusive applied to the answer of an insurance company to a bill to reform a policy. Home Ins., etc., Co. v. Myer, 93 111. 271. Admission Showing Pight to Account. An admission of facts, showing the plaintiff's right to an account, will prevail against a responsive denial of indebtedness. Koons v, Bute, 2 Phila. (Pa.) 170. Admissions Unavailing where Bill is Without Merit. Where an answer ad- mits the allegations of the bill, a decree for the complainant may be reversed and the bill dismissed, upon appeal, notwithstanding the admissions, if the bill itself shows the complainant was not entitled to a decree. In such case the bill is not aided by the an- swer, nor are the defects in the case cured by the decree. Belew v. Jones, 56 Miss. 346. All Admissions Evidence Against De- fendants. Where a case is heard on bill, answer, and replication, only those parts of the answer which are re- sponsive to the bill can be evidence in favor of defendants, but all its admis- sions can be used as evidence against them. Att'y Gen'l v. Steward, 21 N. J. Eq. 340. An answer in chancery admitting the correctness of a copy of a deed made by another person and to which there was no subscribing witness is evidence both of the contents and ex- ecution oi the deed against the person making such an admission. Adams v. Shelby, 10 Ala. 478. Complainant Entitled to Benefit of Ad- mission. Upon a bill to subject to 927 Answers as ANSWERS IN EQUITY PLEADING. Evidence. not be proved. 1 And the admissions cannot be questioned or denied by the proofs. 2 payment of the husband's debts prop- erty alleged to have been fraudulently conveyed to the wife, the complainant is entitled to the benefit of an admis- sion in the answer, tending to estab- lish fraud, although in the face of the general denial. If she sets up, as the means of purchase, a sale of other property, such sale must be shown to be valid and bona fide, although the manner of acquisition was not attacked in the bill. Yost v. Hudiburg, 2 Lea (Tenn.) 627. On the issue whether an alteration was made in the note sued on after delivery without defendant's consent, his answer, admitting execution of the note as set forth in the bill and set- ting up usury in the stipulation which had been added, is competent evi- dence and with complainant's testi- mony outweighs that of defendant. McNail v. Welch, 26 111. App. 482. Answer Renouncing Benefit of Statute. If the defendant admits, in his an- swer, the parol agreement, without in- sisting on the statute, the court will decree a specific performance, upon the ground that the defendant has thereby renounced the benefit of the statute. Small v. Owings, i Md. Ch. 363- Admissions in Answer Different from Allegations in Bill. Where the answer admits a written contract which differs from that set out in the bill, the plain- tiff cannot take advantage of this ad- mission without amending his bill. Buck v. Dowley, 16 Gray (Mass.) 555. Answer Must be Taken as a Whole. The answer of a defendant is but an admission or confession; and if the complainant introduces the whole as evidence, it must be taken as a whole, as well its denials as its admissions. Crawford v. Kirksey, 50 Ala. 590. 2. Pike County v. Griffin, etc., Plank Road Co., 15 Ga. 39; Imboden v, Eto- wah, etc., Mining Co., 70 Ga. 87; Pugh v. Fairmount Gold, etc., Min. Co., 112 U. S. 238; Fergus v. Fink- ham, 38 111. 407. See also Pelham v. Floyd, 9 Ark. 530. Admissions in Answer Need Not be Proved. Where the answers of de- fendants to a bill to foreclose a mort- gage admit the execution and assign- ment of the mortgage which is de- stroyed, they cannot be heard to com- plain that the contents of the mort- gage and assignment are not sufficient- ly proved. Chickering v. Fullerton, 90 111. 520. It is not required of a complainant that he should introduce evidence to prove that which is admitted or stated in the answer, even if the answer is not sworn to; being so stated, it is an admission of record. And in a case where an answer to a bill brought to set aside a conveyance from a husband to his wife set up certain considerations therefor, it was held that if these considerations were not sufficient in law to support the considerations passed as a matter of fact, then it suf- ficiently appeared from the record, in the absence of all evidence to the con- trary, that the deed was made without any valid consideration. Miller v. Payne, 4 111. App. 112. Interpleader Suit. In an interpleader suit, where it appears by the answer of each defendant that he claimed the fund in dispute from the complainant, no other evidence of that need be pro- duced to entitle the complainant to a decree. Balchen v. Crawford, I Sandf. Ch. (N. Y.)38o. 1. Lippincott v. Ridgway, II N. J. Eq. 527; Evans v. Hoffman, 5 N. J. Eq. 354; Van Hook v. Somerville Mfg. Co., 5 N. J. Eq. 633, 45 Am. Dec. 401; Knowles v. Knowles, 86 111. i; Weider v. Clark, 27 111. 251; Robinson v. Philadelphia, etc., R. Co., 28 Fed. Rep. 577- Evidence Varying from Admission In- admissible. If a defendant in his an- swer admit that a slave claimed by him as a gift was always in posses- sion of the donor, he cannot be al- lowed to give evidence that he, the donee, had the possession, for such evidence varies from the admission. Shirley v. Long, 6 Rand. (Va.) 764. Admission Not Precluding Inquiry. Where a bill alleged that a deed was given merely to secure a debt, and the answers admitted that the grantors made a certain deed in writing, of such date and of such purport and ef- fect as in the bill mentioned and set forth, held, not to be such an admis- sion of the nature and effect of the deed as to preclude all inquiry on the subject. Brown v. Balen, 33 N. J. Eq. 469. 928 Answers as ANSWERS IN EQUITY PLEADING. Evidence. Belief from improvident Admissions. If an admission has been made in an answer improvidently and by mistake, the court will relieve the party making it from its effect by an order directing so much of the answer as contains the admission to be treated as no part of the record. But a mere retraction of such admission, in a supplemental answer, will not avail to relieve the party from its effect. 1 What Admitted. Nothing is regarded as admitted by an answer in chancery unless it is expressly admitted. 2 Thus an admission of 1. Maher v. Bull, 39 111. 531. See, however, Hollister v. Barkley, II N. H. 501. 2. Morris v. Morris, 5 Mich. 171; Morris v. Hoyt, n Mich. 9; Young v. McKee, 13 Mich. 552; Hardwick v. Bassett, 25 Mich. 149. Rule to Be Interpreted Sensibly. If the answer to a bill of complaint is so framed as by its omissions or othe- wise to admit by implication an alle- gation contained in the bill, even if said answer is not upon oath, it should relieve complainants from the burden of proof. The rule that noth- ing is to ^i admitted unless expressly admitted is to be interpreted in the light of common sense, and not given a mere arbitrary force. Shook v. Proctor, 27 Mich. 377. Admissions Must Be Fall and Unequiv- ocal. The admissions of a party in a bill or answer in chancery, to be con- clusive on the party, must be full and unequivocal. They must not be in- ferred from other admissions, unless the express admissions are so closely connected with those to be inferred that to disprove the latter would dis- prove the former. Schwarz v. "Sears, Walk. (Mich.) 19. Sufficiency of Assets Not Admitted. Where an executrix alleges, in her an- swer, that she has received the assets of her testator, as shown by her re- turn to the orphans' court, which she is prepared, .when required, to pro- duce, this is not an admission of the sufficiency of assets; and where such sufficiency was a material allegation in the bill, which the complainant failed to prove, the cause was remanded. Dugan v. Gittings, 3 Gill (Md.) 138, 43 Am. Dec. 306. Facts Neither Admitted Nor Denied. Independently of our statute, when- ever the facts are charged in a bill in equity as being within the personal knowledge of the respondent, he must I Encyc. PI. & Pr. 59. 929 explicitly admit or deny them; and if he fail to do so, they will be taken as admitted. But if the allegations of the bill are not of that character, his failure to deny them is ground only of exception to his answer, and will not justify the complainant in treating them as admitted. Mead v. Day, 54 Miss. 58. Sufficient Admission. Where the bill alleges that the judgments on which the suit is founded were regularly en- rolled, and the answer, while it styles it an alleged and pretended enroll- ment, intends to assail it only for as- sumed invalidities in the judgments, the enrollment is sufficiently admitted and need not be proved. Taylor v, Webb, 54 Miss. 36. Where a bill avers that a pre-emp- tion claim was cancelled by the proper department, and contains a copy of a letter from the assistant-secretary, notifying the claimant of the order of cancellation, the averment of the bill is admitted by an answer which no- where denies it, but avers that "the claim was never legally cancelled," and "that if such cancellation was made, it was not only without suffi -ient au- thority, but on insufficient proof." Holmes v. State (Ala., 1893), 14 So. Rep. 51. Where the nominal plaintiff in a judgment at law is joined with the de- fendant therein as a party to a bill in equity by the real owner of the judg- ment, the admission of the nominal plaintiff in his answer is sufficient to establish the ownership of the judg- ment. Nix i>. Winter, 35 Ala. 229. Where a bill in chancery charged that the defendant, as trustee, having become the owner of the debt secured, became the purchaser at his own sale, through a relative, and the answer, after denying any collusion, generally between the defendant and the imme- diate purchaser at die sale, admitted Answers as ANSWERS IN EQUITY PLEADING. Evidence. an allegation in a bill cannot be implied from the insufficiency of the answer to it. 1 Evasive Answer. But an evasive and qualifying answer has been held to amount to an admission. 2 Fact in lasue. An admission will not avail the complainant, unless put in issue by the bill. 3 Decree. A decree may be based entirely on the admissions of the answer without other proof. 4 b. FAILURE TO ANSWER FULLY. The general trend of authority is to the effect that the mere failure of defendant to deny by his answer all the allegations of the bill will not operate as an admis- sion of such allegations as are not denied, and that complainant is nevertheless bound to prove them. 5 that such purchaser, soon after the sale, conveyed the property to the de- fendant, and did not set forth that the purchaser actually paid for the prop- erty at or subsequently to the sale, or that defendant paid him anything for the conveyance, held, that the an- swer was a virtual admission that the defendant was, in fact, a purchaser at his own sale. Higgins v. Curtiss, 82 111. 28. On a bill to correct an alleged mis- take in a lease, an averment in an- swer that, if applied to defendant, " would have corrected any mistake in said lease," was held not to amount to an admission of the specified mis- take and an offer to correct it. Rob- bins v. Battle House Co., 74 Ala. 499. Where an assignee of an insurance policy, claiming it under general as- signment, and also under special as- signment indorsed thereon, files a bill, making the policy a part thereof, and seeks to recover, after loss, against the insurance company, his title to the policy is sufficiently made out, if the company's answer, in its tenor, though not expressly, concede the assignment to him; and it is not necessary for him to produce the general assignment, or other proof of assignment. Lewis v. Knoxville Fire Ins. Co., 85 Tenn. 117. 1. White v. Wiggins, 32 Ala. 424; Savage -v. Benham, 17 Ala. 119; Park- man v. Welch, 19 Pick. (Mass.) 231. 2. Price v. Boswell, 3 B. Mon. (Ky.) 17. But see Gamble v. Johnson, 9 Mo. 605, where it was hed Ithat omissions and evasions in an answer, though cal- culated to weaken the force of the an- swer, were not admissions. Evasive Answer to Charge of Usury. An answer to a charge of usury, which is evasive and suspicious, and resorts to the usual device, that " he does not recollect," etc., is to be construed into an admission. Lewis v. Outton, 3 B. Mon. (Ky.)45g. 3. Hoff v. Burd, 17 N. J. Eq. 204. the court remarking that if an admis- sion be not put in issue by the bill, ad- vantage could be taken of it only by amending the bill. See also Small v. Owings, i Md. Ch. 363. 4. Cavender v. Cavender, 114 U. S. 471; Reynolds v. Crawfordsville Bank, 112 U. S. 405; Brinckerhoff v. Brown, 7 Johns. Ch. (N. Y.) 217; Grosvenor v. Cartwright, 2 Ch. Cas. 21; Perkins v. Nichols, ii Allen (Mass.) 542; Kerr v. Love, i Wash. (Va.) 172; Padfield v. Padfield, 64 111. 166. Decree upon Admissions. A decree setting aside a conveyance as fraudu- lent may be made upon admissions in the answer, if of sufficient weight, not- withstanding the answer denies fraud. Tappan v. Evans, n N. H. 324. 5. Hardy v. Heard, 15 Ark. 195; Blakeney v. Ferguson, 14 Ark. 641; Bonnell -v. Roane, 20 Ark. 114; Young v. Grundy, 6 Cranch (U. S.) 751; Brooks v. Byam, I Story (U. S.) 296; Brown v. Pierce, 7 Wall. (U. S.) 211; Webb v. Powers, 2 Woodb. & M. (U. S.) 479; De Wolf -v. Long, 7 111. 679; Dooley v. Stipp, 26 111. 86; Thorn v. Adams, 59 111. 223; Morgans. Herrick, 21 111.481; Cushman v. Bonfield (111. Sup.), 28 N. E. Rep. 937; Trenchard v. Warner, 18 111. 144; Nelson v. Pine- gar, 30 111. 473; Kitchell v. Burgwin, 21 111. 44; Holdridge -v. Bailey, 5 111. 124; Wilson v. Kinney, 14 II . 27; Stacey v. Randall, 17 111. 470; Coch- ran v. Evans, i Har. & J. (Md.) 202; Warfield v. Gambrill, I Gill & J. 93 Answers as ANSWERS IN EQUITY PLEADING. Evidence. Qualification of Rule. But in some jurisdictions a well-established qualification obtains, namely, that if material facts are stated in (Md.) 503; Joice v. Taylor, 6 Gill & J. (Md.) 54, 25 Am. Dec. 325; Dugan v. Gittings, 3 Gill (Md.) 164, 43 Am. Dec. 306; McDowell v. Goldsmith, 2 Md. Ch. 387; Briesch v. McCau- ley, 7 Gill (Md.) 196; Warner v. Dove, 33 Md. 579; Eyler v. Crabbs, 2 Md. 154; Dilly v. Barnard, 8 Gill & J. (Md.) 170; Keighler v. Savage Mfg. Co., 12 Md. 413, 71 Am. Dec. 600; West v. Williams, i Md. Ch. 360; Hopkins v. Stump, 2 Har. & J. . Oat- ley, 6 Wis. 42; Gamble v. Johnson, 9 Mo. 605. Falsum in Uno, Falsum in Omnibus. Where an answer is contradicted in any one or more important particulars by sufficient evidence, that is, by two witnesses, or by one witness with corroborating circumstances, it is de- prived in all other respects of that weight which is allowed to answers by the rules of a court of equity; for, being falsified in one thing, no con- fidence can be placed in it as to others, according to the maxim fa/sum in ttno, falsum in omnibus. Roundtree v. Gordon, 8 Mo. 25. One Witness Sufficient. Where the an- swer is discredited on other points, one witness will prevail against it. Young v. Hopkins, 6 T. B. Mon. (Ky.) 23- Entitled Only to Diminished Credit. A n answer, as evidence, ought, like every other species of evidence, to be liable to be impeached and overthrown. But, if impeached in material parts by the proofs in the case, it is entitled to only diminished credit. Forsyth v. Clark, 3 Wend. (N. Y.) 637. See Fant v. Miller, 17 Gratt. (Va.) 187. 2. Wetmore v. White, 2 Cai. Cas. (N. Y.) 87, 2 Am. Dec. 323, Bellows v. Stone, 18 N. H. 465; Rogers v. French, 19 Ga. 316; Whittington v. Roberts, 4 T. B. Mon. (Ky.) 173; Bobez/. Stickney, 36 Ala. 482; Ressler v. Witmer, I Pa. St. 174; Remington v. Willard, 15 Wis. 583; McLard v. Linnville, 10 Humph. (Tenn.) 163; McGuffie v. Planters' Bank, Freem. Ch. (Miss.) 383; Rector v. Rector, 8 111. 105; Toulme v. Clark, 64 Miss. 471; Atkinson v. Foster, 134 111. 472; Barraque v. Siter, 9 Ark. 546; Copeland v. Crane, 9 Pick. (Mass.) 73; Farnam v. Brooks, 9 Pick. (Mass.) 212; Veile v. Blodgett, 49 Vt. 270; Harrison -v. Gardner, 2 Madd. 455. Illustrations. Sworn averments in 943 Answers as ANSWERS IN EQUITY PLEADING. Evidence; b. EVASIVE ANSWERS. If facts alleged in the bill are denied' equivocally or evasively, one credible witness who swears postively will be sufficient to establish them. 1 c. ANSWERS ON INFORMATION AND BELIEF. If an answer states the facts on information and belief instead of positively upon defendant's own knowledge, even though it be responsive, the general rule as to the effect of responsive answers as evidence the answer to a creditor's bill, which sets up the confession by defendant of a judgment on a note, that the note, " as defendant is advised," was paid before the judgment was confessed; that " on an accounting " between the parties "it will appear that there is nothing due from defendant on said note or judgment;" and that defend- ant is not indebted in any amount on said note "because he says " that said note had been fully paid by a third person, " as will be shown on an accounting" between such third per- son and the payee, are not direct and positive denials of an allegation in the bill that the judgment remains unpaid, and hence they need not be overcome by the evidence of two witnesses, or its equivalent. Atkinson v. Foster, 134 111. 472. A statement, in an answer, to the effect that "respondent does not ad- mit the statement of moneys paid, as charged in the bill, to be correct, but avers that the aggregate of said pay- ments but little (if any) exceeded the amount of principal and interest due on the first of said notes." does not so negative the payments claimed in the bill as to require the testimony of two witnesses, or of one witness with cor- roborating circumstances, to overturn it. Bobe v. Stikney, 36 Ala. 482. Where complainants allege that a certain pier and its appurtenances are essential to the enjoyment of their canal, and the answer alleges that they are useful but not essential, such denial is not so direct and positive as to entitle the answer to outweigh the allegation of the bill. Morris Canal, etc., Co. v. Jersey City, n N. J. Eq. 13- In a suit in equity to open a settle- ment of accounts, where the suit was barred unless there was a sufficient acknowledgment or promise to take it out of the statute, one witness testi- fied that the witness said: " I am will- ing to pay all errors and interest on them, and you are authorized to say as much." In his answer the defend- ant denied " that he ever made such a promise as he is falsely stated in the bill to have made, within two years last past. He might have stated that if any important, palpable errors, of a nature to affect the character of said settlement, should be found, they ought and should be corrected; but that unimportant differences between an exact account and the abstract used should not be permitted by the defend- ant, at this period, to operate on or affect such settlement." He denied that any admission, of other or differ- ent meaning from this, was ever made by him. Held, that this was not such a direct, positive, and unequivocal denial of the acknowledgment that it required two witnesses to overcome the answer at this point. Farnam v. Brooks, 9 Pick. (Mass.) 212. 1. Slater v. Maxwell, 6 Wall. (U. S.) 268; Phillips v. Richardson, 4 J. J. Marsh. (Ky.) 212; Combs v. Boswell, I Dana (Ky.).475; Lawrence v. Law- rence, 4 Bibb (Ky.) 358. See also Rembert v. Brown, 17 Ala. 667. Evasive Answer Merely a Pleading. An answer filed in response to a call for an answer under oath, where eva- sive and responsive to the interroga- tory, is to be treated only as a plead- ing, and not as evidence. Deimel v. Brown, 35 111. App. 303. Evasive Answer of Little Force. A grossly evasive answer cannot have the force of one that shows apparent good faith. Fairbairn v. Middlemiss, 47 Mich. 372. Partial Evasiveness Does Not Vitiate Entire Answer. Where, in the defend- ant's answer, there is a general denial, which is clear and distinct, any am- biguity or apparent evasion in a par- ticular part will not vitiate or destroy other parts. The whole answer is to be taken together, and if any particu- lar part is ambiguous, it ought to be so construed as to comport with the general denial. Clason v. Morris, 10 Johns. (N. Y.) 524. 94* Answers as ANSWERS IN EQUITY PLEADING. Evidence. is inapplicable, and at most the answer can only be regarded as a pleading putting in issue the allegations of the bill and putting the complainant to proof. 1 In such case a single witness in sup- 1. Alabama. Newman v. James, 12 Ala. 29; Paulding v. Watson, 21 Ala. 279; Waters v. Creagh, 4 Stew. & P. (Ala.) 410; Pearce v. Nix, 34 Ala. 183. Arkansas. Watson v. Palmer, 5 Ark. 501; Fairhurst v. Lewis, 23 Ark. 435; Biscoe v. Coulter, 18 Ark. 423; Wheat v. Moss, 16 Ark. 250; Barraque v. Siter, 9 Ark. 545; Burr v. Burton, 18 Ark. 228. District of Columbia. Miller v. Dis- trict of Columbia, 5 Mackey (D. C.) 291; Noyes v. Inland, etc., Coasting Co., 4 McArth. (D. C.) i. Indiana. State v. Holloway, 8 Blackf. (Ind.)45- Illinois. Cunningham v. Ferry, 74 111. 426. Georgia. Rogers v. French, 19 Ga. 316. Maryland. Philadelphia Trust, etc., Co. v. Scott, 45 Md. 451; Drury v. Conners, 6 Har. & J. (Md.) 289 ; Dugan v. Gittings, 3 Gill (Md.) 138, 43 Am. Dec. 306; Dorsey v. Gassaway, 2 Har. & J. (Md.)402. Massachusetts. Copeland z>. Crane, 9 Pick. (Mass.) 73; Parkman v. Welch, 19 Pick. (Mass.) 231; Buttrick v. Hoi- den, 13 Met. (Mass.) 355. Mississippi. Carpenter v. Edwards, 64 Miss. 595; Snell v. Fewell, 64 Miss. 655; Toulme v. Clarke, 64 Miss. 471; McGuffie v. Planters' Bank, Freem. Ch. (Miss.) 383; Hanover Nat. Bank v. Klein, 64 Miss. 150, 60 Am. Rep. 47. New York. Hutchinson v. Smith, 7 Paige (N. Y.) 26; Town v. Needham, 3 Paige (N. Y.) 546; Dunham v. Gates, Hoffm. Ch. (N. Y.) 185. Rhode Island. Atlantic, etc., Ins. Co. v. Wilson, 5 R. I. 479. Tennessee. McKissick v. Martin, 12 Heisk. (Tenn.) 311; Wilkins v. May, 3 Head (Tenn.) 173 ; McLard v. Linn- ville, 10 Humph. (Tenn.) 163. Ferment . Veile v. Blodgett, 49 Vt. 270; Loomis v. Fay, 24 Vt. 240; Wooley v. Chamberlain, 24 Vt. 270. Wisconsin. Remington v. Willard, 15 Wis. 583. United States. Berry v. Sawyer, 19 Fed. Rep. 286; Allen v. O'Donald, 28 Fed. Rep. 17; Slater v. Maxwell, 6 Wall. (U. S.) 268; Robinson v. Man- dell, 3 Cliff. (U. S.) 169. England. Hughes v. Garner, 2 Y. & C. 127. Illustrations. In a proceeding to avoid a deed on the ground that it was never delivered to the grantee, but was fraudulently taken from his possession, when the defendants, heirs of the grantee, have no personal knowledge of the delivery of the deed, and can only answer as to their infor- mation and belief, and the answer contains no positive denial of the fact which is distinctly alleged in this bill, it is not evidence in defendant's favor upon that point, and complain- ant is not required to increase the weight of his evidence to overcome it. Benson v. Woolverton, 15 N. J. Eq. 158. Where an answer to a bill to fore- close a mortgage set up a mortgage made but not recorded prior to that of plaintiff, and alleged upon information and belief that the plaintiff had notice of the existence of defendant's mort- gage at the time he took his, the an- swer was held not to be evidence for defendant, because not positive in form. Remington v. Willard, 15 Wis. 583. Two foreclosure suits pending in the same court were consolidated by consent of counsel, and it was agreed that the second bill should be taken as an answer and cross-bill to the first. The complainant in the first bill admitted the validity of the other's mortgage, while the latter alleged on information and belief that the for- mer's mortgage was intended to hin- der and delay creditors, and that the debts secured by it were fictitious. Held, that it was incumbent on the first complainant as against the sec- ond to prove the existence and bona fides of the debt which constituted the consideration of his mortgage. De Vendal v. Malone, 25 Ala. 272. Answer on Information and Belief Not Aided by Codefendant's Answer on Knowl- edge. Two defendants united in an answer. The one, an assignor, met the allegations of the bill on his own knowledge, and the other, an assignee, on information and belief. The an- swer of the latter does not fall within the rule requiring two witnesses to prevail against it; nor can it be aided by the answer of the other. Dunham v. Gates, Hoffm. Ch. (N. Y.) 185. Where a material allegation of the I Encyc. PI. & Pr. 60. 945 Answers as ANSWERS IN EQUITY PLEADING. Evidence. port of such allegations will be sufficient to authorize a decree for complainant. 1 Answers on Opinion and Belief. An answer which negatives a posi- tive allegation by way of opinion and belief may be overbalanced by proof less stringent and conclusive than if the defendant's denial had been made upon his own knowledge. 2 Answers on Knowledge and Belief. A denial according to the best of defendant's knowledge and belief, or, in other words, saying he has no recollection of facts alleged, merely throws the proof upon the other party, and a single witness is sufficient to estab- lish the fact. 3 bill is denied, on information and be- lief merely, by all the defendants ex- cept one, as to whom an answer made under oath was waived, and by whom the allegation is denied from knowl- edge, it is not incumbent on the plaintiff to establish the fact by two witnesses, or by one witness with cor- roborating circumstances. Pearce v. Nix, 34 Ala. 183. Answer on Information and Belief Not Aided by Ex Parte Affidavit. An answer on information and belief has no probative force to negative the testi- mony of one or more witnesses in support of the bill. Nor can such an answer be aided by the ex parte affi- davit of a deceased witness. Miller v. District of Columbia, 5 Mackey (D. C.) 291. An Averment of Belief from Informa- tion Keceived, even if responsive to the bill, is not evidence. Luburg's Ap- peal, 23 W. N. C. (Pa.) 454. An Answer to a Bill, from Information, Hearsay, or Belief (except, perhaps, when the facts answered by a defend- ant on information are against his interest, and he states, additionally, that he believes them to be true) is not responsive to a bill so as to make it evidence in the case. Arline v. Miller, 22 Ga. 330. In Mississippi a denial in an answer upon information is a denial other- wise than by the general traverse, within the meaning of Ann. Code 1892, 533, providing that allegations of fact alleged in the bill and not denied by the answer otherwise than by the general traverse may be taken at the hearing as admitted, and is suf- ficient to prevent facts averred in the bill from being taken at the hearing as admitted. Carpenter v, Edwards, 64 Miss. 595. 1. Fairhurst v. Lewis, 22 Ark. 435; Biscoe v. Coulter, 18 Ark. 423; Wat- son v. Palmer, 5 Ark. 501; Atlantic, etc., Ins. Co. v. Wilson, 5 R. I. 479; Pearce v. Nix, 34 Ala. 183; Newman v. James, 12 Ala. 29; Waters v. Creagh, 4 Stew. & P. (Ala.) 410; Paulding v. Watson, 21 Ala. 279; State v. Hollo- way, 8 Blackf. (Ind.) 45; Dunham v, Gates, Hoffm. Ch. (N. Y.) 185; Town v. Needham, 3 Paige (N. Y.) 546; Slater v. Maxwell, 6 Wall. (U. S.) 268; Toulme v. Clarke, 64 Miss. 471. 2. Givens v. Tidmore, 8 Ala. 745. 3. Knickerbacker v. Harris, i Paige (N. Y.) 209; Town v, Needham, 3 Paige (N. Y.) 546. Where the bill allegesthatanoriginal paper, acopyof which is appended toan exhibit to the bill, is in the defendant's possession, and specially interrogates him as to the correctness of the alleged copy, and requires him to point out the differences (if any) between it and the original; and the defendant speci- fies in his answer two particulars in which the alleged copy differs from the original, and avers that there are other differences which he cannot recollect, this does not impose upon the complainant the onus of proving the correctness of the alleged copy. Hartwell v. Whitman, 36 Ala. 712. Contra. A policy of insurance con- tained a stipulation that if the as- sured then had, or thereafter should have, any other insurance upon the same property, notice thereof should be given to the insurance company, and the same be indorsed upon the policy, or otherwise acknowledged by the company, in default of which the policy should cease. A loss of the property accruing, the assured filed a bill against the company, alleging notice of a subsequent insurance upon the same property to the defendant t and praying that the company might 946 Answers as ANSWERS IN EQUITY PLEADING. Evidence, Answer Denying Knowledge, Information, and Belief. An answer that de- fendant has no knowledge, information, and belief concerning the allegation of the bill leave such allegations to be proven by com- plainant, but such answer is not equivalent as evidence to a denial of the facts alleged. 1 Answer Showing Lack of Personal Knowledge. Where a defendant in his answer swears positively to facts as to which the answer shows he could have no personal knowledge, evidence equivalent to two witnesses is not necessary to overcome the answers in relation to such facts. 2 Answer of Defendant Who Has No Personal Knowledge. The answer of a defendant who has no personal knowledge of the facts he alleges is not evidence though responsive to the bill, and the only effect of such an answer is to make an issue and put complainant to the proof of his allegations. In such case the testimony of one wit- ness for complainant will warrant a decree in his favor. 3 d. ANSWERS ON HEARSAY. Where the answer states facts acquired through hearsay merely, it is not evidence. 4 e. ANSWER ALLEGING IGNORANCE. And the same is the case where defendant by his answer professes complete ignorance of the facts stated in the bill. 5 be compelled to indorse the notice upon the policy, or otherwise acknowl- edge it in writing. The answer of the company, sworn to by the then presi- dent, denied the notice, to the best of his knowledge and belief. Held, that the answer being responsive to the bill, and denying the allegation under oath, the general rule applied, and that the allegation of the bill must be proved by two witnesses, or one wit- ness and other evidence. Carpenter v. Providence Washington Ins. Co., 4 How. (U. S.) 185. 1. The Holladay Case, 27 Fed. Rep. 830. 2. Fryrear v. Lawrence, 10 111. 325; Garron v. Carpenter, I Port. (Ala.) 359; Lawrence v. Lawrence, 21 N. J. Eq. 317. 3. United States. Dutilh v. Cour- sault, 5 Cranch (C. C.) 349. Kentucky. Harlan v. Wingate, 2 J. J. Marsh. (Ky.) 138; Combs v. Bos- well, i Dana (Ky.) 473; Williamson v. McConnell, 4 Dana (Ky.) 454. Arkansas. Watson v. Palmer, 5 Ark. 501; Wheat v. Moss, 16 Ark. 250; Barraque v. Siter, 9 Ark. 550; Biscoe v. Coulter, 18 Ark. 423; Burr v. Burton, 18 Ark. 228. Alabama. Gibbs v. Frost, 4 Ala. 721 ; Garrow v. Carpenter, i Port. (Ala.) 359; Waters v. Creagh, 4 Stew. & P. (Ala.) 410. Illinois. Deimel v. Brown, 136 111. 586. Virginia. Tabb v. Cabell, i7Gratt. (Va.) 160. Ne-w Jersey. Lawrence v. Lawrence, 21 N. J. Eq. 317; Kinna v. Smith, 3 N. J. Eq. 14. Indiana. Townsend v. Mclntosh, 14 Ind. 57. Vermont. Loomis v. Fay, 24 Vt. 240; Wooley v. Chamberlain, 24 Vt. 270. Delaware. Lattomus v. Garman, 3 Del. Ch. 232. Maryland. Pennington v. Gittings, 2 Gill & J. (Md.) 215; Drury v. Con- ner, 6 Har. & J. (Md.) 288. Thus, where A. brought his bill to enjoin a judgment recovered against him by default, averring that from sickness he had been unable to attend the trial at law, and the answer de- nied the fact and put A. to the proof, it was held that the testimony of one witness was sufficient to establish the charge, as the defendant could have no personal knowledge of the fact. Watson v. Palmer, 5 Ark. 501. 4. Stevens v. Post, 12 N. J. Eq. 408; Doub v. Barnes, i Md. Ch. 130. 5. Couthway v. Berghaus, 25 Ala. 393; Drury v. Conner, 6 Har. & J. (Md.) 288; Harlan v. Wingate, 2 J. J. Marsh. (Ky.) 138; Neale v. Hagthrop, 3 Bland (Md.) 578 (citing Hagthorp v. 947 Answers as ANSWERS IN EQUITY PLEADING. Evidence. 8. Unsworn Answer. Where an answer without oath is filed, it is not evidence in favor of defendant for any purpose. 1 But, on Hook, i Gill & J. (Md.) 273; Potter v. Potter, I Ves. 274; Amhurst v. King, I Cond. Ch. Rep. 407); Harrison v. An- napolis, etc., R. Co., 50 Md. 513; Philadelphia Trust, etc., Co. v. Scott, 45 Md. 453; Williamson v. McConnell, 4 Dana (Ky.) 454; Young v. Hopkins, 16 T. B. Mon. (Ky.) 18; Brown v. Pierce, 7 Wall. (U. S.) 212. In Neale v. Hagthrop, 3 Bland (Md.) 551, the court said: "Where an an- swer in the body of it purports to be an answer to the whole bill, but the respondent declares that he is entirely ignorant of the matters contained in the bill, and leaves the plaintiff to make out the best case he can, or any language to that effect, and the plain- tiff files a general replication, all the allegations of the bill are thus denied and put in issue, and consequently all of them must be proved at the hearing against a defendant who had thus an- swered." Illustration. Where a bill is filed by a married woman against her trustee and certain judgment creditors of her husband, seeking the reformation of a deed on the ground of mistake, an injunction of the judgment, and the appointment of another trustee; and decrees proconfesso are entered against all the defendants except the trustee, who avers his ignorance of the alleged mistake, the clear and direct testi- mony of one witness is sufficient to authorize the reformation of the deed. Godwin v. Yonge, 22 Ala. 553. 1. Alabama. Guthrie v. Quinn, 43 Ala. 561; Lockhart v. Troy, 48 Ala. 579; Marshall v. Croom, 52 Ala. 554; Griffin v. State Bank, 17 Ala. 258; Wilkinson v. Bradley, 54 Ala. 677; Zelnicker v. Brigha.m, 74 Ala. 598; Watts v. Eufaula Nat. Bank, 76 Ala. 474; White v. Wiggins, 32 Ala. 424; Rainey v. Rainey, 35 Ala. 282; Keiffer v. Barney, 31 Ala. 192; Frazer v. Lee, 42 Ala. 25. Georgia. Vanderzer v. McMillan, 28 Ga. 339. Illinois. Wallwork v. Derby, 40 111. 527; Hopkins v. Granger, 52 111. 504; Willenborg v. Murphy, 36 111. 344; Moore v. Hunter, 6 111. 317; Adlard v. Adlard, 65 111. 217; Chambers v. Rowe, 36 111. 171; Jones v. Neely, 72 111. 449; Ferguson v. Sutphen, 8 111. 572. Indiana, Peck v. Hunter, 7 Ind. 295; Larsh v. Brown, 3 Ind. 234; Moore v. McClintock, 6 Ind. 209. Iowa. Armstrong v. Scott, 3 Greene (Iowa) 433; White v. Hampton, 10 Iowa 238. Maine. Clay v. Towle, 78 Me. 86. Maryland. Stockett v. Holliday, 9 Md. 480; Taggart v. Boldin, 10 Md. 104; Dorn v. Bayer, 16 Md. 144. Massachusetts. Gerrish v, Towne, 3 Gray (Mass.) 82. Michigan. Morris v. Hoyt, II Mich. 9; Adair v. Cummin, 48 Mich. 375. New Hampshire. Winsor v. Bailey, 55 N. H. 223; Ayer v. Messer, 59 N. H. 279; Hall v. Congdon, 55 N. H. 105; Wilson v. Towle, 36 N. H. 129. New Jersey. Hyer v. Little, 20 N. J. Eq. 443; Walker v. Hill, 21 N. J.. Eq. 191; Stevens v. Post, 12 N. J. Eq. 408; Sweet -v. Parker, 22 N. J. Eq. 452. New York. Bartlett v. Gale, 4 Paige (N. Y.) 503; Fulton Bank v. Beach, 2 Paige (N. Y.) 307; Fishell v. Bell, Clarke Ch. (N. Y.) 37; Miller v. Avery, 2 Barb. Ch. (N. Y.) 582; Hatch v. Eustaphieve, Clarke Ch. (N. Y.) 63. Ohio. Miami Exporting Co. v. U. S, Bank, Wright (Ohio) 249. l^ennessee. Lindsley v. James, 3 Coldw. (Tenn.) 477; Murray v. John- son, i Head (Tenn.)353; Van Wyck v. Norvel, 2 Humph. (Tenn.) 196; Dun- lap v. Haynes, 4 Heisk. (Tenn.) 476. Wisconsin. Smith v. Potter, 3 Wis. 432; Flint v. Jones, 5 Wis. 424. United States. Union Bank v. Geary, 5 Pet. (U. S.) 99; Patterson v. Gaines, 6 How. (U. S.) 550. Answer Sworn before Party Unauthor- ized to Administer Oath. A paper writing, purporting to be the answer of a defendant, filed after his death, and certified as sworn to by him, but the person so certifying not appearing in the certificate, nor by evidence, to have been a magistrate of any kind, is not the answer of the party, nor evidence in the cause. Sitlingtons v. Brown, 7 Leigh. (Va.) 271. An answer, though responsive on the point in controversy, sworn to be- fore an officer in another state, not authorized by the statutes of this state or the rules of this court to take such oaths, has no weight as evi- dence; it must be treated as a plead- ing only. Freytag v. Hoeland, 23 N, J. Eq. 3 6. 948 Answers as ANSWERS IN EQUITY PLEADING. Evidence. the other hand, the admissions and allegations which tend to sup- port the case made by the bill are evidence against him. 1 An an- swer filed without being sworn to may nevertheless be treated as a valid answer by the complainant, and in such a case will have the * same effect as evidence in favor of the defendant as if sworn to. 8 9. Answer Where Oath is Waived. It may be stated as a well- settled rule that, in the absence of statutory regulation or rule of court, a mere waiver in the bill by complainant of the requirement that defendant shall make oath to his answer will not deprive him of the right to make oath thereto if he sees fit, and thereby make his answer evidence in his favor. 3 statutory Changes of Bale. In many jurisdictions, however, this rule has been modified or abolished altogether by statutes and rules of court. 4 But even in jurisdictions where a waiver of oath by Answer Not Evidence Unless Duly Sworn. A paper purporting to be an answer to a bill of discovery, and to have been sworn to before a magis trate in another state, is not admis- sible in evidence as such, without proof of its having been filed as such, of the signature of the party, and of the attestation of the officer. Dough- ton v. Tillay, 4 Blackf. (Ind.) 433. 1. Curling v. Townshend, 19 Ves. 628; Bartlett v. Gale, 4 Paige (N. Y.) 503; Durfee v. McClurg, 6 Mich 223; Morris v. Hoyt, n Mich, 9; Sims v. Ferrill, 45 Ga. 585; Smith v. Potter, 3 Wis. 432; Hyer v. Little, 20 N. J. Eq. 443 ; Symmes v. Strong, 28 N.J.Eq. 131. But no part of an unsworn answer, which has been withdrawn by consent of the court upon the ground that it was written by the solicitor and did not state the facts of the case, can be read as evidence against the de- fendant on the hearing of the case. Hurst v. Jones, xoLea (Tenn.) 8. 2. Fulton Bank v. Beach, 2 Paige (N. Y.) 3 o 7 . 3. Jevvett v. Cunard, 3 Woodb. & W. (U. S.) 277; Clements v. Moore, 6 Wall. (U. S.) 299; Conley v. Nailor, 118 U. S. 127; Amory v. Lawrence, 3 Cliff. (U. S. ) 523; Woodruff v. Dubuque, etc., R. Co., 30 Fed. Rep. 91; Vander- zer v. McMillan, 28 Ga. 339: Armstrong v. Scott, 3 Greene (Iowa) 434; White v. Hampton, 9 Iowa 182, 10 Iowa 238; Brown v. Bulkley, 14 N. J. Eq. 294. Laches in Swearing to Answer. Where petitioners did not call for an answer under oath, and defendants made an- swer, which remained on file but not sworn to for a year held, that defend- ants, havi.ig so long omitted to make oath to their answer, could not, by in- corporating a little new matter, under a special leave given to file an amended answer in the nature of a plea, into their old answer, and making affidavit to it, give the force of a sworn an- swer to the original one. De France v. Howard, 4 Iowa 524. 4. Alabama. Thus, in Alabama, where the bill is filed for any other pur- pose than discovery only, plaintiff may waive oath, and in such case the an- swer is entitled to no more weight as evidence from the bill. Civil Code 1886, 3422. See also Guthrie v. Quinn, 43 Ala. 561; Lathams. Staples, 46 Ala. 462; Lockhart v. Troy, 48 Ala. 579; Marshall v. Croom, 52 Ala. 554; Mosser v. Mosser, 29 Ala. 313; Griffin v. State Bank, 17 Ala. 258; Wilkinson u. Bradley, 54 Ala. 677; Zelnicker v. Brigham, 74 Ala. 598; Watts v. Eufaula Nat. Bank, 76 Ala. 474. Illinois. Where a bill shall be filed for any purpose other than discovery only, complainant may waive oath, and the answer may be made without oath, and shall have no greater effect as evidence than the bill. Rev. Sts. 1893, p. 219, 20. Moore v. Hunter, 6 111. 317; Adlard v. Adlard, 65 111. 212; Willenborg v. Murphy, 36 111. 344; Harris v. Reece, 10 111. 212; Wallwork v. Derby, 40 111. 527; Tracy v. Rogers, 69 111. 662; Hopkins v. Granger, 52 111. 504; Ferguson v. Sutphen, 8 111. 547; Willis v. Henderson, 5 111. 13; Chambers v. Rowe, 36 111. 171. Where answer under oath is not waived in suit to set aside a gambling contract, a sworn answer is evidence. Patterson -v. Scott, 37 111. App. 520, affirmed 142 111. 138. 949 Answers as ANSWERS IN EQUITY PLEADING. Evidence. bill destroys the effect of the answer as evidence, a defendant cannot be deprived of the benefit of his answer under oath as Georgia. If complainant waives an answer under oath, the answer filed is not evidence. It may be used, how- ever, as an admission of record, and complainant is not bound to prove any fact admitted. But when so used the admission must be taken, together with any qualifications or explanations accompanying it. Woodward v. Gates, 38 Ga. 205. Maine. All answers shall be signed by respondent and sworn to by him if complainant in his bill asks for an- swer upon oath. Otherwise it may be signed by respondent, his agent or at- torney; but in such case it has no effect as evidence, except to cast the burden of proof upon plaintiff. Rev. Sts. c. 77, 15. See also Clay v. Towle, 78 Me. 86; Peaks v. McAvey (Me., 1886) 7 Atl. Rep. 270. Indiana. Acts 1847, p. 60, provid- ing that where the bill prays for an- swer without oath, answer shall oper- ate only as a denial of the allegations and charges in the bill, and in such case complainant shall not be required to substantiate such charges and alle- gations by more than one witness. Under this statute an answer put into a bill requiring answer without oath is not evidence for defendant. Larsh v. Brown, 3 Ind. 234; Moore v. Mc- Clintock, 6 Ind. 209; Peck v. Hunter, 7 Ind. 295. Maryland. Chancery Rule 146 pro- vides that it shall not be necessary for any defendant to make oath to his an- swer unless required by the plaintiff, nor shall any answer, whether sworn to or not, be evidence against the plaintiff at the hearing of the cause, unless the plaintiff shall read such an- swer as evidence against the defend- ant making the same; but this section shall not apply to motions to dissolve an injunction or to discharge a re- ceiver. See also Winchester v. Balti- more, etc., R. Co., 4 Md. 231; Stockett v. Holliday, 9 Md. 486; Warren v. Twilley, 10 Md. 39; Taggartz/. Boldin, 10 Md. 114; Mickle v. Cross, 10 Md. 360; Hamilton v. Whitridge, n Md. 144, 69 Am. Dec. 184; Gelston v. Rull- man, 15 Md. 267; Mahaney v. Lazier, 16 Md. 69; Rich v. Levy, 16 Md. 74; Dorn v. Bayer, 16 Md. 145; Dorsey v. Hagerstown Bank, 17 Md. 412; Colvin v. Warford, 17 Md. 433; State v. Northern Cent. R. Co., 18 Md. 194; Hubbard v. Mobray, 20 Md. 165; Hus- ton v. Ditto, 20 Md. 306; Watson v. Watson, 58 Md. 442; Diffenbach v. Vogeler, 61 Md. 378. Massachusetts. When a bill shall be filed other than for discovery only, complainant may waive the necessity of an oath to the answer, and the an- swer may be made without oath and shall have no other or greater effect as evidence than the bill. Rule 5, Ch. Pr., 24 Pick. (Mass.) 411. See also Babcock v. Smith, 22 Pick. (Mass.) 61; Bingham v. Yeomans, loCush. (Mass.) 58. Michigan. When a bill shall be filed in chancery other than for discovery, complainant may waive the answer being made on oath, in which case the answer shall have no other or greater force as evidence than the bill. How. Sts. of Mich. 6621. See also Morris v. Hoyt, II Mich. 9; Van Inwagen v. Van Inwagen, 86 Mich. 333; Roberts v. Miles, 12 Mich. 297. Mississippi. In Mississippi, if the rule be waived, the answer, whether sworn to or not, shall not be evidence for defendant. Ann. Code 1892, 534. New Hampshire. In New Hampshire, Rule 9 of Chancery Practice provides that answers, unless required by bill to be under oath, need not be sworn to, in which case they will be regarded only as pleadings. If the bill does not call for a sworn answer, the answer, though under oath, is pleading and not evidence. See Ayer v. Messer, 59 N. H. 279; Hall v. Congdon, 55 N. H. 105; Winsor v. Bailey, 55 N. H. 223; Wilson v. Towle, 36 N. H. 129. New Jersey. In New Jersey com- plainant may pray for defendant's an- swer without oath. The answer need not be sworn to, and the allegation therein, whether responsive to the bill or not, shall not be evidence except on motion to grant or dissolve an injunc- tion. Ch. Acts N. J. (Ridley Comp.) 21, $ 23. See also Stevens v. Post, 12 N. J. Eq. 408; Hyer v. Little, 20 N. J. Eq. 443; Sweet v. Parker, 22 N. J. Eq. 453; Walker v. Hill, 21 N. J. Eq. 191. New York. In New York, under the old chancery practice, 2 Rev. Sts. 175, 44, authorized complainant to waive the necessity of an answer on oath from defendant, and in construing 95 Answers as ANSWERS IN EQUITY PLEADING. Evidence. evidence by a waiver of oath in an amended bill filed subse- quently to the answer, and substantially the same as the original bill wherein an answer under oath was not waived. 1 10. Answer of Codefendant a. As EVIDENCE AGAINST CODE- FENDANT. Generally the answer of one defendant -is not evidence against his codefendant, for the obvious reason that the defendant against whom the answer is proposed to be used as evidence would be deprived of the benefit of a cross-examination. 2 Cush. (Mass.) 58; Wylder v. Crane, 53 111. 490. Illustration. Where the original bill required an answer under oath, which was filed, and afterwards the com- plainant filed an amended bill, setting up new matter and dispensing with a sworn answer held, that such waiver would not affect the answer under oath already filed, and extended only to the new matter set up in the amended bill. Jefferson v. Kennard, 77 111. 246. 2. Alabama. Chambliss v. Smith, 30 Ala. 366; May v. Barnard, 20 Ala. 200; Julian v. Reynolds, 8 Ala. 680; Moore v. Hubbard, 4 Ala. 187; Taylor v. Roberts, 3 Ala. 83; Singleton v. Gayle, 8 Port. (Ala.) 270; Collier v. Chapman, 2 Stew. (Ala.) 163; Cocker- ham -v. Davis, 5 Port. (Ala.) 220; Damer Land, etc., Co. v. Stonewall Ins. Co., 77 Ala. 184. Arkansas. Whiting v. Beebe, 12 Ark. 421; Barraque v. Siter, 9 Ark. 545; Dunn v. Graham, 17 Ark. 60; Blakeney v. Ferguson, 14 Ark. 640; Folsom v. Fowler, 15 Ark. 282; Delaware. Pleasanton v. Raughley, 3 Del. Ch. 124. Georgia. Adkins v. Paul, 32 Ga. 219; Allen v. Holden, 32 Ga. 418; Morris 'v. Foote, 2 Ga. Dec. 119; Ligon v. Rogers, 12 Ga. 281; Clayton v. Thomp- son, 13 Ga. 206; Carithers v. Jarrell, 20 Ga. 843; Hickson v. Bryan, 75 Ga. 392- Illinois. Martin v. Dryden, 6 111. 187; Rector v. Rector, 8 111. 105; Rust v. Mansfield, 25 111. 336. Indiana. Thomasson v. Tucker, 2 Blackf. (Ind.) 172; M'Clure v. M'Cor- mick, 5 Blackf. (Ind.) 129. Iowa. Jones v. Jones, 13 Iowa 276; Williamson v. Haycock, u Iowa 40; Mobley v. Dubuque Gas Light, etc., Co., u Iowa 71. Kentucky. Daniel v. Ballard, 2 Dana (Ky.) 296; Moseley v. Arm- strong, 3 T. B. Mon. (Ky.)287; Harri- son v. Johnson, 3 Litt. (Ky.)2S6; Har- rison v. Edwards, 3 Litt. (Ky.) 340; this statute it has been held that where oath to answer has been so waived, the answer is not evidence for defendant for any purpose. Bartlett v. Gale, 4 Paige (N. Y.) 503. See also Miller v. Avery, 2 Barb. Ch. (N. Y.) 582; Fishell v. Bell, Clarke Ch. (N.Y.) 37; Hatch v. Eustaphieve, Clarke Ch. (N. Y.) 63. Tennessee. In Tennessee plaintiff may waive answer under oath, and the answer will not be entitled to more weight in evidence than the bill. M. & V. Code of Tenn. 5060; Ch. Rule 6; Lindsley z>.James,3Coldw. (Tenn.) 477; Murray v. Johnson, i Head (Tenn.) 353; Van Wyck v. Norvell, 2 Humph. (Tenn.) 196. United States. By amendment to 4ist Eq. Rule, if the complainant waive answer under oath, or shall only require an answer under oath with re- gard to certain specified interroga- tories, the answer, though under oath, except such part as shall be directly responsive to such interrogatories, shall not be evidence unless the cause be set down for hearing on bill and an- swer only, but may nevertheless be used as an affidavit with the same effect as heretofore on a motion to grant or dissolve an injunction, or any other incidental motion in the cause; but this shall not prevent a defend- ant from becoming a witness in his now behalf under Act of Congress 1864, $ 3. See also Conley v. Nailor, 118 U. S. 127; U. S. v. Workingmen's Amalgamated Council, 54 Fed. Rep. 994; Dravo v. Fabel, 132 U. S. 487; Treadwell v. Lennig, 50 Fed. Rep. 872. Virginia. The provisions of the Vir- ginia Statute (Code Va. 1887, 3281) are the same as amendment to 4ist Eq. Rule (U. S.), supra. See also Pettit v. Jennings, 2 Rob. (Va.) 676; Jones v. Abraham, 75 Va. 466. 1. Throckmorton v. Throckmorton, 86 Va. 768; Walker v. Campbell, 5 Lea (Tenn.) 354; Burras v. Looker, 4 Paige (N Y.) 227; Bingham v. Yeomans, 10 95* Answers as A NS WERS IN EQUITY PL EA D ING. Evidence. Nominal Defendant. So also the answer of one nominally a defend- ant though substantially a complainant, and who has the same Timberlake v. Cobbs, 2 J. J. Marsh. (Ky.) 136; Winters v. January, Litt. Sel. Cas. (Ky.) 13; Turner v. Holman, 5 T. B. Mon. (Ky.)4ii; Jones v. Bullock, 3 Bibb (Ky.) 467; Hardin v. Baird, Litt. Sel. Cas. (Ky.) 340; Fanning v. Pritchett, 6 T. B. Mon. (Ky.) 79; Blight -v. Bank, 6 T. B. Mon,(Ky.) 192, 17 Am. Dec. 136; White v, Robin- son, i A. K. Marsh. (Ky.) 569; Hunt v. Stephenson, i A. K. Marsh. (Ky.) 570; Davis v. Harrison, 2 J. J. Marsh. (Ky.) 189; Graham v. Sublett, 6 J. J. Marsh. (Ky.) 44; Bartlett v. Marshall, 2 Bibb (Ky.)4&7- Maine. Rundlet v. Jordan, 3 Me. 47; Robinson v. Sampson, 23 Me. 388; Felch v. Hooper, 20 Me. 159; Gilmore v. Patterson, 36 Me. 544. Maryland. Winn v. Albert, 2 Md. Ch. 169; Hayward v. Carroll, 4 Har. & J. (Md.) 518; Stewart v. Stone, 3 Gill & J. (Md.) 510; -Calwell v. Boyer, 8 Gill & J. (Md.) 136; Jones v. Har- wood, 10 Gill& J. (Md.)404; McKimz/. Thompson, I Bland (Md.) 150; Briesch v. McCauley, 7 Gill (Md.) 189; Lingan v. Henderson, i Bland (Md.) 236; Glenn v. Grover, 3 Md. 212; Fowled v. Dilley, 9 Gill (Md.) 222; Bevans v. Sullivan, 4 Gill (Md.) 383; Reese v. Reese, 41 Md. 554; Glenn v. Baker, I Md. Ch. 73. Massachusetts. Mills v. Gore, 20 Pick. (Mass.) 34; Chapin v. Coleman, ii Pick. (Mass.) 331. Mississippi. Holloway v. Moore, 4 Smed. & M. (Miss.) 594; Salmon v. Smith, 58 Miss. 399; Hanover Nat. Bank v. Klein, 64 Miss. 141, 60 Am. Rep. 47. North Carolina. Ellis v. Amason, 2 Dev. Eq. (N. Car.) 273. New York. Webb v. Pell, 3 Paige (N. Y.) 368; DeForest v. Parsons, 2 Hall (N. Y.) 130; Phoenix v. Ingra- ham, 5 Johns. (N. Y.) 412: Grant v. Bissett, i Cai. Cas. (N. Y.) 112; Grant v. U. S. Bank, i Cai. Cas. (N. Y.) 112; Dykers v. Wilder, 3 Edvv. Ch. (N. Y.) 496; Beekman v. Gibbs, 8 Paige (N. Y.) 511; Judd v. Seaver, 8 Paige (N. Y.) 548. New Jersey. Vanderveer v. Hoi- comb, 17 N. J. E*q. 547; Hoff v. Burd, 17 N. J. Eq. 201. See also McElroy v, Ludlum, 32 N. J. Eq. 828. Pennsylvania. Eckman v. Eckman, 55 Pa. St. 269. Tennessee. Davis v. Clayton, 5 Humph. (Tenn.) 446; Wells v. Strat- ton, i Tenn. Ch. 328; McDaniel v. Goodall, 2 Coldw. (Tenn.) 391; Turner v. Collier 4 Heisk. (Tenn.) 89. Vermont. Cannon v. Norton, 14 Vt. 178; Conner v. Chase, 15 Vt. 764; Blodgett v. Hobart, 18 Vt. 414; Porter v. Rutland Bank, 19 Vt. 410. Virginia. Dade v. Madison, 5 Leigh (Va.)4Oi; Hoomes v. Smock, I Wash. (Va.) 389; Pettit v. Jennings, 2 Rob. (Va.) 676. United States. Clark v. Reimsdyk, 9 Cranch (U. S.) 153; Field v. Hol- land, 6 Crarich (U. S.) 8; Van Reims- dyk v. Kane, I Gall. (U. S.) 386; Dex- ter v. Arnold, 3 Sumn. (U. S.) 152; Lenox v. Notrebe, Hempst. (U. S.) 251; Leeds v. Marine Ins. Co., 2 Wheat. (U. S.) 380; West v. Randall, 2 Mason (U. S.) 205. England. Green -v. Pledger, 3 Hare 165; Anonymous, i P. Wms. 301; Jones v. Tuberville, 2 Ves. Jr. n; Morse v. Royal, 12 Ves. 355; Parker v. Morrell, 12 Jur. 253; Hoare v. Johnstone, 2 Keen 553; Wych v. Meal, 3 P. Wms. 311; Wrottesley v. Bendish, 3 P. Wms. 235; Leigh -v. Ward, 2 Vent. 72; Chervet v. Jones, 6 Madd. 166. Illustrations and Applications of Rule. The answer of the assignor and obligee of a bond that it was founded on a gaming consideration is not evi- dence against the assignee. Pettit v. Jennings, 2 Rob. (Va.) 6.76. In a suit to foreclose a mortgage the answer of a junior mortgagee is not evidence of the existence of such junior mortgage as against a defend- ant who has suffered the bill to be taken as confessed. Beekman v. Gibbs, 8 Paige (N. Y.) 511. In a suit by a wife to compel the appropriation to her benefit of bank stock alleged to have been purchased with funds in the hands of her hus- band as her trustee, but which had always stood in the name of her hus- band, the husband was made a defend- ant to the suit. Held, that his answer that the property was purchased with the trust funds was not evidence against his codefendants to charge them with notice of trust. Porter v. The Bank of Rutland, 19 Vt. 410. A. and others of the first part, B. of the second part, and C. of the third 952 Answers as ANSWERS IN EQUITY PLEADING. Evidence. interest and object, is not evidence against a codefendant. It is not in the power of the plaintiff, in such a case, to avail himself of the answer of a party who is, in reality, though not in form, a plaintiff. 1 Harmless Error. It seems, though, that the erroneous admission of the answer of one defendant as evidence against another is no ground for the reversal of a decree, where the rights of the latter could not have been predjudiced thereby. 2 part entered into a partnership for the purchase and sale of land. A. filed a bill in his own name against B. and C. for an account and settlement of the partnership, alleging that he had pur- chased the interest of his associates and making them defendants. B. and C. denied all knowledge of the pur- chase, and required proof. Held, that the answer of such associates cannot be read in evidence against B. and C. to prove the right of A. to sue in his own name. Moore v. Hubbard, 4 Ala. 187. The answer of an administrator in a suit against him and others is not evidence of correctness of an item in his account in a hearing before a spe- cial register as against his codefend- ants who are interested as to such item adversely. Pearson v. Darrington, 32 Ala. 227. A. executed several notes for the ac- commodation of B. , who assigned them to C. as security for an alleged usuri- ous loan. A. brought suit to enjoin judgment which C. had obtained on the notes. Held, that B. was not a com- petent witness for A., and that the an- swer for B., who was a defendant, was not evidence against C., and that they could have no decree against B. until he had paid the amount of the judg- ments. Moseley v. Armstrong, 3 T. B. Mon. (Ky.) 287. Fraudulent Combination, Absence of. The answer of one defendant, a co- partner with complainant in the prin- cipal matter of litigation, is not evi- dence against a codefendant where it is not alleged or proved that defend- ants were fraudulently combined so as to create a unity of interest between therm. Winters -v. January. Litt. Sel. Cas. (Ky.) 13. Answer of One Partner as Evidence Against Another. In an action between partners to settle partnership accounts in'er j^.the answer of one partner can- not be used to charge another. Chapin v. Coleman, n Pick. (Mass.) 331; Be- vans v. Sullivan, 4 Gill (Md.) 383. Husband and Wife Codefendants. Where husband and wife file a joint an- swer, such answer cannot be read in evidence against the wife where the subject-matter relates to her estate of inheritance. Lewis v. Yale, 4 Fla. 418. Contra, Dyett v. North American Coal Co., 20 Wend. (N. Y.) 570, 32 Am. Dec. 598. Principal and Agent as Codefendants. Where principal and agent are de- fendants in a bill, the admissions in the answer of theagent cannot be taken as evidence against the principal. Clark v. Van. Riemsdyk, 9 Cranch.(U. S.) 153; Leeds v. Marine Ins. Co., 2 Wheat. (U. S.) 380. Contra, Rector v. Rector, 8 111. 105. Failure of One Defendant to Answer. The answer of one defendant is no evidence against his codefendant, and hence the failure of one defendant to answer cannot be used as evidence against his codefendant Timberlake v. Cobbs, 2 J. J. Marsh. (Ky.) 136; Blight v. Banks, 6 T. B. Mon. (Ky.) 192, 17 Am. Dec. 136; Harrison v. Johnson, 3 Litt. (Ky.)a86; Dickinson v. Chesa- peake, etc., R. Co., 7 W. Va. 390; Hol- loway v. Moore, 4 Smed. & M. (Miss.) 594. See also Jordan v. Brunough, n Ark. 702. 1. Field v. Holland, 6 Cranch (U. S.)8. 2. Thus the Supreme Court on ap- peal will not reverse the decree of the lower court for error in refusing to ex- clude from consideration the answer of one defendant as evidence against his codefendant, when the other evidence in the cause is sufficient to substantiate the decree. Barraque v. Siter, 9 Ark, 545. So also it has been held that the an- swer of one defendant cannot be used as evidence against the others in stat- ing an account before the master, but if the other answers, and proofs in the 953 Answers as ANSWERS IN EQUITY PLEADING. Evidence. Qualifications of Rule. The general rule is subject to the qualifica- tion that the answer of one defendant may be used as evidence against a codefendant where they are privies in estate, where the latter claims through the former, where their interests are joint, and where there is a fraudulent combination between them. 1 So also the rule is not applicable where one defendant in his own answer refers to that of his codefendant for further information. 2 And it has been held that in cases where the rights of the com- plainant as against one defendant are only prevented from being complete by some question between the complainant and a sec- ond defendant, the complainant should be permitted to read the answer of such second defendant for the purpose of completing his claim against the first. 3 b. As EVIDENCE FOR CODEFENDANT. It has been laid down as a general rule in equity practice that the answer of one defend- ant cannot be read as evidence for his codefendant. 4 cause show a greater balance against them than the account as stated on the basis furnished by the answer, it is error without injury. Halstead v. Shepard, 23 Ala. 558. 1. Alabama. Julian v. Reynolds, 8 Ala. 680. Arkansas. Dunn v. Graham, 17 Ark. 60; Barraque v. Siter, 9 Ark. 545; Whiting v. Beebe, 12 Ark. 421; Blakeney v. Ferguson, 14 Ark. 640. Georgia. Morris v. Foote, 2 Ga. Dec. 119; Adkins v. Paul, 32 Ga. 219; Allen v. Holden, 32 Ga. 418; Hickson v. Bryan, 75 Ga. 392. Illinois. Rector v. Rector, 8 111. 105; Rust v. Mansfield, 25 111. 336; Pensonneau v. Pulliam, 47 111. 58. Indiana. Townsend v. Mclntosh, 14 Ind. 57. Iowa. Williamson v. Haycock, II Iowa 40; Morbley v. Dubuque Gas Light, etc., Co., n Iowa 71. Kentucky. Winters v. January, Litt. Sel. Cas. (Ky.) 13. Maine. Gilmore v. Patterson, 36 Me. 544. Maryland. Lingan v. Henderson, I Bland (Md.) 267; Powles v. Dilley, 9 Gill (Md.) 222; Williams v. Hodgson, 2 Har. & J. (Md.) 477, 3 Am. Dec. 563. Massachusetts. Chapin v. Coleman, ii Pick. (Mass.) 331. Mississippi. Fitch v. Stamps, 6 How. (Miss.) 487. New York. Judd v. Seaver, 8 Paige (N. Y.) 548; Dunham v. Gates, 3 Barb. Ch. (N. Y.) 196; Christie v. Bishop, i Barb. Ch. (N. Y.) 105. North Carolina. Griffin v. Pleas- ant, i Ired. Eq. (N. Car.) 152. Pennsylvania. Eckman v. Eckman, 55 Pa. St. 269. United States. Field v. Holland, 6 Cranch (U. S.) 8; Osborn v. U. S. Bank, 9 Wheat. (U. S.) 738; Clark v. Van Riemsdyk, 9 Cranch (U. S.) 156. Illustration. The admissions of one copartner with reference to the legiti- mate business of other copartners are deemed to be the admissions of each and all of its members, even when found in an answer to the bill under consideration by the court. Gilmore v. Patterson, 36 Me. 544. Contra. The answer of one defend- ant in chancery is not evidence against a codefendant, claiming title under the former, because the party against whom the answer is proposed to be read would be deprived of the benefit of a cross-examination. Winn v. Albert, 2 Md. Ch. 169; Harwood v. Jones, 10 Gill & J. (Md.) 404. Where two defendants who are neither partners nor privies are charged to be jointly combined in the perpetration of a fraud, the answer of one cannot be read as evidence against the other. May v. Barnard, 20 Ala. 200. 2. Chase v. Manhardt, i Bland (Md.) 333; Anonymous, i P. Wms. 301; Blakeney v. Ferguson, 14 Ark. 640. 3. Whiting v. Beebe, 12 Ark. 421. 4. Chambliss v. Smith, 30 Ala. 366; May v. Barnard, 20 Ala. 200; Julian v. Reynolds, 8 Ala. 680; Moore v. Hubbard, 4 Ala. 187; Taylor v. Rob- erts, 3 Ala. 83; Singleton v. Gayle, 8 Port. (Ala.) 270; Collier v. Chapman, 2 Stew. (Ala.) 163; Gilmore v. Patter- 954 Answers as ANSWERS IN EQUITY PLEADING. Evidence. Qualification of Rule. But this rule is subject to the qualification that the answer, when responsive to the bill, is admissible in favor of a codefendant. 1 11. Answer of Infants. The answer of an infant defendant by his guardian is not evidence against him; material allegations in the bill must be proved by other means. 2 It may, however, be son, 36 Me. 544; Blodgett v. Hobart, 18 Vt. 414; Cannon v. Norton, 14 Vt. 178; Lenox v. Notrebe, Hempst. (U. S.) 251; Carithers v. Jarrell, 20 Ga. 843; Davis v. Clayton, 5 Humph. (Tenn.) 446; Salmon v. Smith, 58 Miss. 399. Separate Answer of Defendant as to Whom Bill has been Dismissed is not evidence for a codefendant. Larkin's Appeal, 38 Pa. St., 457. Answer Referring to Answer of Code- fendant Not Filed. The answer of a de- fendant that he has seen the answer of another defendant in the cause, and that the same is true, cannot avail to make such answer evidence for himself when the answer referred to was not then filed and there is nothing to identify it with that after- ward filed by such codefendant. Carr v. Weld, 19 N. J. Eq. 319. 1. Mills v. Gore, 20 Pick. (Mass.) 28; Morris v. Nixon, i How. (U. S.) 119; Miles v. Miles, 32 N. H. 147, 64 Am. Dec. 362; Powles v. Dilley, 9 Gill (Md.) 222; Pleasanton v. Raughley, 3 Del. Ch. 124. Illustrations. Though the answer of one defendant be not evidence against a codefendant, yet, where it is respon- sive to the bill, it may be evidence in his favor, and more especially so where such codefendant, being a mere depositary of a chattel claimed by both parties, defends himself under the title of the other defendant. Mills v. Gore, 20 Pick. (Mass.) 28. A bill charged fraud and collusion between the vendor and vendee in the sale of property, made them both de- fendants, and sought discovery and relief against them. Held, that the answer of the vendor was as against the complainant evidence for the ven- dee so far as it was responsive to the allegations in the bill. Ligon v. Rog- ers, 12 Ga. 281. Though it is in general true that the answer of one defendant is not evi- dence for another, yet the answer of one defendant may contain an admis- sion that will be evidence for another. as an admission that another defend- ant has paid the answering defendant a debt due from that other defendant and the plaintiff. Carithers v. Jar- rell, 20 Ga. 842. Answer as Evidence for Codefendant Failing to Answer. If a joint defend- ant answers a bill and removes the equity set up against himself and the other defendant who does not answer, no decree can be rendered against the defendant failing to answer. McDan- iel v. Goodall, 2 Coldw. (Tenn.) 391. Answer Not Excluded Because Evidence for Codefendant. Where a complainant calls upon defendant to answer he makes the latter a witness, and his answer cannot be excluded because it may operate in favor or a codefend- ant. Powles v. Dilley, 9 Gill (Md.) 222. Answer of Trustee as Evidence for Ces- tui Quo Trust. A bill was filed against a feme covert (the owner of a separate estate), her husband, and the trustee, to subject her separate estate to the satisfaction of a note executed in common form by the feme co-vert and her husband for the payment of money. The trustee answered the bill and denied the equity thereof. The husband and wife did not an- swer, and there was an order that the bill be taken pro confesso as to them. Held, that the answer of the trustee removed the equity as to the wife. Cherry v. Clements, 10 Humph. (Ten^ ) 552. 2. Harris v. Harris, 6 Gill & J. (Md.)in; Kent v. Taneyhill, 6 Gill & J. (Md.) i; Stewart v. Duvall, 7 Gill & J. (Md.) 179; Benson v. Wright, 4 Md. Ch. 278; Stephenson v. Stephenson, 6 Paige (N. Y.) 353; Alexandria Bank v. Patton, i Rob. (Va.) 528; Cochran v. McDowell, 15 111. 10; Stinson v. Pickering, 71 Me. 167. Answer Mere Pleading. The answer of an infant by his guardian is a plead- ing merely, and not evidence. Bulk- ley v. Van Wyck, 5 Paige (N. Y.) 536. Bill Must be Proved. " The answer of a guardian ad litem, admitting the 955 Answers as ANSWERS IN EQUITY PLEADING. Evidence. evidence in his favor. 1 Nor has the answer of an adult co- defendant any effect against an infant.* 12. Answer of Corporation Aggregate. The answer of a corpora- tion aggregate under its corporate seal has the same force and effect as evidence, as the answer of an individual not under oath would have in a like case and no other or greater. The effect of such answer is to create an issue which, before decree can be pro- nounced for complainant, must be decided on testimony of at least one witness or corroborating circumstances in support of the bill. 3 truth of the charges in the bill, cannot affect the infant's rights, but with re- spect to him all the allegations must be proved with the same strictness as if the answer had interposed a direct and positive denial of their truth; nor can a default or a decree pro confesso be entered against an infant. Breese, J., in Chaffin v. Kimball, 23 111. 33, citing McClay v. Norris, 9 111. 370; Cochran v. McDowell, 15 111. 10; Greenough v. Taylor, 17 111. 602; Tut- tle v. Garrett, 16 111. 354; Hitt v. Ormsbee, 12 111. 166; Masterson v. Wiswould, 18 111. 48; Reavisz/. Fielden, 18 111. 77. Answer of Executor. Where infant children, by their father, file their bill, alleging his inability to support them, and praying income from their estates for that purpose, the fact of their father's ability will be inquired into and determined by the court; admis- sions by the answer of the executor are not sufficient. Tompkins v. Tompkins, 18 N. J. Eq. 303. No Decree on Admissions. No decree can be made against infants on ad- missions in the answer of their guard- ian ad litem. Wright v. Miller, I Sandf. Ch. (N. Y.) 103; James v. James, 4 Paige (N. Y.) 115. Answer of Complainant to Cross-Bill. The answer of a complainant to the cross-bill of adult defendants is not evidence against infant's defendants who appear by guardian ad litem. Campbell v. Campbell, i Ind. 220. West Virginia Taking Answer as True. Sec. 36, ch. 125 of the Code, so far as it relates to taking material al- legations of a bill, or material allega- tions of new matter in an answer con- stituting a claim for affirmative relief, as true, should not be applied strictly, if at all, to the answers of infant de- fendants by guardian ad litem. Laidley v. Kline, 8 W. Va. 219. 1. Carnall v. Wilson, 14 Ark. 482. Proof Necessary Decree. The answer of infant defendants, calling upon the complainants to prove the bill, only puts them to the proof of what is charged, and entitles them only to a decree on the case made in the bill, when proved. Robinson v. Towns- hend, 3 Gill &. J. (Md.)4i3. 2. Watson v. Godwin, 4 Md. Ch. 25. 3. Maryland, etc., Coal, etc., Co. v. Wingert, 8 Gill (Md.) 170; Bouldin v. Mayor, 15 Md. 18; Farmers', etc., Bank v. Nelson, 12 Md. 49; Whalen v, Delashmutt, 59 Md. 250; Haight v. Proprietors Morris' Aqueduct, 4 Wash. (U. S.) 601; Union Bank v. Geary, 5 Pet. (U. S.) 112; Baltimore, etc., R. Co. v. Wheeling, 13 Gratt. (Va.) 40; State Bank v. Ellis, 30 Ala. 478; Van Wyck v. Norvell, 2 Humph. (Tenn.) 192; McLard v. Linnville, 10 Humph. (Tenn.) 163; Lindsley v. James, 3 Coldw. (Tenn.) 487; Wood- fork v. Union Bank. 3 Coldw. (Tenn.) 497; Smith v. St. Louis Mut. L. Ins. Co., 2 Tenn. Ch. 600; Lovett v. Steam Saw Mill Assoc., 6 Paige (N. Y.) 58; Fulton Bank v. New York, etc., Canal Co., i Paige (N. Y.) 311. The answer of a corporation with- out oath where complainant does not require it to be sworn to or supported by the sworn answers of the officers of the corporation cannot be said to answer the double purpose of a plead- ing to put the material matters of the bill in issue, and of an examination of the defendant for the purpose of ob- taining his evidence in support of the complainant's allegations; and it is for the latter purpose alone that the complainant makes a witness of his ad- versary in the cause. Such answer is a mere pleading to put in issue the matter of the bill. Lovett v. Steam Saw Mill Assoc., 6 Paige (N. Y.) 59. Contra. The answer of a corporation 956 Answers as ANSWERS IN EQUITY PLEADING. Evidence. 13. Answer of Party Interested or Incompetent. An answer is not to be discredited, or any presumption indulged against it, on ac- count of its being the answer of a party interested. 1 Nor because the defendant is incompetent as a witness in ordinary cases.* 14. Answers in Injunction Proceedings.- On the hearing of a mo- tion to dissolve an injunction, the allegations of the answer, so far as the same are responsive to the allegations of the bill, must be taken as true, and if they deny the averments of the bill upon which the equity of the injunction rests, the latter must be dis- solved. 3 if responsivethoughmadeby acorpora- tion aggregate under the seal without oath, is competent evidence and can- not be overturned by the testimony of one witness alone. Salmon v. Clagett, 3 Bland (Md.) 165. See also Carpenter v. Providence Washington Ins. Co., 4 How. (U. S.)2i8. Answer Sworn to by Officer. The fact that such answer is sworn to by the cashier who is no party to the pro- ceeding cannot alter the rule. Van Wyck v. Norvell, 2 Humph. (Tenn.) 192. 1. Clason v. Morris, 10 Johns. (N. Y.) 524; Petrie v. Wright, 6 Smed. & M. (Miss.) 647. 2. The effect of an answer responsive to a bill does not depend upcn re- spondent's competency as a witness. Saffold v. Home (Miss., 1894), 15 So. Rep. 639. See also Hartley v. Mat- thews, 96 Ala. 224; Dexter v. Oh- lander, 95 Ala. 467; Patterson v. Scott, 142 111. 138; Harding v. Haw- kins, 141 111. 572. " It is no objection to the validity and efficacy of an answer, that the de- fendant is infamous or a negro, and, as such, an incompetent witness in ordinary cases; his answer must, not- withstanding, have full credit allowed to it, since the plaintiff, by calling him into court, has given him a com- petency to this extent for the purpose of defending himself and protecting his property." Bland, C., in Salmon v. Clagett, 3 Bland (Md.) 165, citing Davis's Case, 2 Salk. 461, 5 Mod. 74; Omichund v. Barker, I Atk. 50; Bow- yer v. McEvoy, i B. & B. 562. 3. Colvin v. Warford, 17 Md. 433; Webster v. Hardisty, 28 Md. 593; Dougherty v. Piet, 52 Md. 425; Wood v. Patterson, 4 Md. Ch. 335; Harris v. Sangston, 4 Md. Ch. 394; Huston v. Huston, 20 Md. 306; Cronise v. Clark, 4 Md. Ch. 403; Alexander v. Ghiselin, 5 Gill (Md.) 138; Briesch v. McCauley, 7 Gill (Md.) 189: Chase v. Manhardt, I Bland (Md.) 333; Salmon v. Clagett, 3 Bland (Md.) 125, distinguished in Belt v. Blackburn, 28 Md. 241; Voshell v. Hynson, 26 Md. 83; Att'y-Gen'l v. Oakland County Bank, Walk. (Mich.) 90; West -v. Rouse, 14 Ga. 715; Moore v. Ferrell, i Ga. 7; U. S. v. Parrott, I McAll. (U. S.) 271; Dillingham v. Roberts, 77 Me. 284; Harris v. Reece, 10 111. 212; Fowler v. Roe, 3 Stock. (N. J.) 367; Jones v. McKenzie, 6 Jones Eq. (N. Car.) 203; Rembert z/. Brown, 17 Ala. 667. No Case for Injunction. An easement in water was granted for the use of machinery then in use; a bill to en- join the use of the easement alleged a change in machinery, which the an- swer, to which oath wa$ waived, denied; no proofs were heard. Held, that the answer met the bill, and was of equal weight, and, therefore, in the absence of evidence, no case for an injunction was made. Mandeville v. Comstock, 9 Mich. 536. Injunction in Limine. Where a bill brought to cancel a mortgage alleged payment of the same, the burden of proof is on complainants and if it be denied in a sworn answer made on knowledge, the allegation of payment will not sustain an injunction in limine restraining legal proceedings by a pur- chaser under the mortgage. Hartley v. Matthews, 95 Ala. 224. Answer of Corporate Body. The an- swer in chancery of a corporate body, under its common seal, denying the equity of the bill, is sufficient to war- rant the denial of an injunction, or to dissolve it if granted. Haight v. Morris Aqueduct, 4 Wash. (U. S.) 601. The answer of a corporation, under its seal, is something more than plead- ing, and where it negatives the bill, warrants the dissolution of an injuno 957 Answers as ANS WERS IN EQUITY PLEA DING, Evidence^ When Dissolved. As a general rule, if the answer to a bill of in- junction fully, fairly, plainly, distinctly, and positively denies the material allegations in the bill, and no proof is taken to sustain the bill, the court ought, on the coming in of the answer, to dis- solve the injunction. 1 Answer Not Responsive. If the answer is not responsive to the bill and sets up new matter in avoidance, the injunction will not be dissolved. 8 Allegations Unanswered. Neither will the injunction be dissolved t on. (Collier, C.J., dissenting, was in- clined to think that an attestation under the common seal was essential to the authenticity of the answer, where a discovery was not specially sought from the officers, agents, etc., of the corporation; but when an an- swer is thus authenticated, the presi- dent, etc., may verify it by his own oath, and then, if responsive, it will be entitled to the force of evidence. Hogan v. Bank, 10 Ala. 485. When a Charge is Not Fully Answered, yet if the complainant do not show him- self entitled to claim the equity grow- ing out of that transaction, it will not stand in the way of dissolving an in- junction. Quackenbush v. Van Riper, I N. J. Eq. 476. Answer Not Positive. An answer which does not deny the averments in which the equity .of the bill consists, but states " that respondent does not believe, and cannot admit that the said attorney made any such arrangements or contract set forth in the bill," is not sufficient to dissolve an injunction. Kent v. Richards, 3 Md. Ch. 392. Answer on Information and Belief is likewise insufficient to dissolve injunc- tion. Irick v. Black, 17 N. J. Eq. 189. Evasive Answer. An answer in which the denial is made in such form as to leave it in doubt whether the denial is of the fact alleged, or only of the facts in the form and manner and at the time alleged in the bill, is evasive, and will not avail to dissolve an in- junction. McMahon v. O'Donnell, 20 N. J. Eq. 306. Answer Founded on Hearsay. An in- junction can only be dissolved by pos- itive contradictory averments in the answer, and an answer founded upon hearsay is not sufficient to remove the complainant's equity, though resting upon information derived from others, it denies the facts out of which that Doub v. Barnes, i Md. equity arose. Ch. 127. Answer to Be Eead. On a motion for an injunction made or submitted after filing of answer, the answer is to be read; and where the answer swears away the equity of the bill, the injunc- tion should be refused: If granted, should be dissolved. Lynn v. Mount Savage Iron Co., 34 Md. 603; Bell v. Purvis, 15 Md. 22; Hall v. McPherson, 3 Bland (Md.) 539. Usury. A bill was filed praying an injunction on the ground of usury. The allegations of usury were denied in the answer, and no proof was of- fered, though the answer raised suspi- cions. Held, that such bill must be dismissed. Sneed v. Smith, i Patt. & H. (Va.)46. Answer Not Under Oath. An injunc- tion should not be dissolved, and a bill dismissed, upon the filing of an answer, not under oath; or without evidence of the truth of the facts alleged in the answer. Gray v. M'Cance, n 111. 325. 1. Shonk v. Knight, 12 W. Va. 667; Moore v. Farrell, i Ga. 7; Parkinson r'.Trousdale, 4 111.367; Cox z'.Douglass, 20 W. Va. 175. When Rule should be Followed Excep- tion. There are some exceptions to this general rule, but it ought to be followed when great injury would re- sult to the defendant if the injunction was continued till the hearing, and no serious loss would be sustained by the plaintiff if it were dissolved, even if the cause was or should be decided in his favor on the hearing. Shonk v. Knight, 12 W. Va. 667. 2. Att'y Gen'l v. Oakland County Bank, Walk. (Mich.) 90; Ferriday v. Selcer, Freem. Ch. (Miss.) 258; Moore v. Ferrell, i Ga. 7; Woolen v. Smith, 27 Ga. 216; State v. Northern Cent. R. Co.,i8 Md. 193; Hutchins v. Hope 7 Gill (Md.) 123. 958 Answers as ANSWERS IN EQUITY PLEADING. Evidence. where any material allegation constituting the equity of the bill remains unanswered. 1 15. Answers as Evidence in other Causes #. SUITS IN EQUITY As Evidence Against Defendant. An answer in equity is admissible evidence against defendant, in a subsequent suit in equity to which he is a party, even though the parties to the two suits are not the same. 2 Answer Not an Estoppel. But the answer of defendant in one cause can only be used and regarded as evidence, and not as an estoppel in a subsequent cause. 3 As Evidence For Defendant. So also it seems that such answer is evi- dence for defendant in a subsequent suit in equity, and if com- plainant, after sworn answers are filed, dismisses his bill and files another setting up substantially the same grounds for relief but waiving answer under oath, such answers filed in the prior suit will remain evidence, and complainant can have no decree under the second bill until such sworn answers are overcome by a pre- ponderance of other proof. 4 the decree not being final, the com- plainant in that bill (being defendant 1. Wooten v. Smith, 27 Ga. 216; State v. .Northern Cent. R. Co., 18 Md. 193; Salmon v. Clagett, 3 Bland (Md.) to the original suit) is not authorized, 125, distinguished in Belt v. Blackburn, 28 Md. 241. Injunction Continued till Final Hearing. When motion to dissolve is heard on bill and answer, so much of the bill as is not denied by answer is taken for true, and if any one of its material allegations remains unanswered, in- junction will be continued till the final hearing; because in such a case, the equity upon which injunction issued is not sworn away. Brown v. Stewart, i Md. Ch. 87. See also Jones v. Ed- wards 4 Jones Eq. (N. Car.) 257. 2. Royall v. McKenzie, 25 Ala. 363; Mims v. Mims, 3 J. J. Marsh (Ky.) no. Answer of Defendant as Evidence for his Representatives. The answer of de- fendant to a bill in equity is not legal evidence for his representatives in a new suit against them relative to the same- cause of action. Drury v. Con- ner, 6 Har. & J. (Md.) 288. Answer a Part of Deposition. Where a witness, in his deposition, referred to an answer in chancery made by him in another case, and made a certified copy of the answer a part of his depo- sition held, that the certified copy would not be read as a part of his de- position. Hamilton Supreme Court, 1844; Knox v. Strader, 2 W. L. J. 69. Answer to Bill of Review as Evidence in Original Suit. Where a bill of review has been dismissed, on the ground that it ought not to have been allowed. in his subsequent defense, to make use of the answer to the bill of review. Ellzey v. Lane, 4 Munf. (Va.) 66. Answer Made but Not Filed as Evidence in Another Suit. A. having filed a bill to compel B. to convey lands alleged to have been purchased by him in trust, B. prepared his answer, made oath to it, and was about to file it, when the bill was dismissed. After B.'s death another bill was filed, for the same purpose by the same parties, against the heirs and representatives of B. Held, that since it appeared that many of the transactions must have been known exclusively to B. and unknown to his heirs, they should be permitted to make the answer thus prepared by him a part of their answer and evidence in their favor. Culbert- son v. Matson, n Mo. 493. See also Matson v. Melchor, 42 Mich. 477. Answer to Cross-bill which has been Dismissed cannot be read in evidence in complainant's favor. Saffold v. Home (Miss., 1894), 15 So. Rep. 639. When Complainant may Read Answer to Cross-bill. A complainant cannot read in evidence his own answer to a bill of discovery in a cross-suit, unless the defendant first produce it. Phillips v. Thompson, i Johns. Ch. (N. Y.) 131; Montgomery Branch Bank v. Parker, 5 Ala. 731. 3. Young v. Mackall, 4 Md. 362. 4. Mey v. Gulliman, 105 111. 272. 959 Answers as ANSWERS IN EQUITY PLEADING. Evidence. b. ACTIONS AT LAW As Evidence Against Defendant. An answer is also admissible against defendant in an action at law sub- sequently instituted, 1 though the parties to the two causes are not the same.* 1. Clarke v. Robinson, 5 B. Mon. (Ky.) 55; Rees v. Lawless, 4 Litt(Ky.) 219; Roberts v. Tennell, 3 T. B. Mon. (Ky.) 249; Mims v. Mims, 3 J. J. Marsh. (Ky.) no; McNutt v. Dare, 8 Blackf. (Ind.) 35; Randall v. Parra- more, i Fla. 458; Saltmarsh v. Bower, 23 Ala. 230: Crocker v. Clements, 23 Ala. 296; Cox v. Cox, 2 Port. (Ala.) 533; Gordon v. Green, 10 Ga. 534; Fant v. Miller, 17 Gratt. (Va.) 187; Daniel v. Johnson, 29 Ga. 207; Sower- wein v. Jones, 7 Gill & J. (Md.) 541; Kiddie v. Debrutz, i Hayw. (N. Car.) 420. Illustrations. Where a defendant in an action of assumpsit against him, in Virginia, filed a bill of discovery against the plaintiff, who answered, and the defendant read the bill and answer to the jury, held, that the contents of the answer might be con- sidered by the jury, so far as they credited them, as evidence of the plaintiff's right to recover. Sower- wein v. Jones, 7 Gill & J. (Md.) 335. In replevin for a horse distrained for rent, an answer by defendant in a suit in chancery between the same parties is competent evidence against him, and much more ought it to be so where it is made in a solemn proced- ure in a court of justice under the sanction of an oath. Roberts v. Ten- nell, 3 T. B. Mon. (Ky.) 249. The answer to a bill in chancery, filed by the party making a remainder by parol in trust, against the trustee, which clearly admits the nature and objects of the trust, was held to be ad- missible, to sustain the remainder in an action of assumpsit by the cestui que trust, against the trustee, for the trust fund. Gordon v. Green, 10 Ga. 534- An answer in chancery by a de- fendant in ejectment, in a chancery case on the same subject, is admissible as proof of his declarations. Earl v. Shoulder, 6 Ohio 409; Bermon v. Woodbridge, 2 Doug. 788. The distinction between an answer as evidence in the cause in equity in which it is made and when offered as ev- idence in a common-law action, is that in the first it is evidence only so far as 960 it is responsive, but in the latter the whole of it is evidence ; and it is for the jury to give each portion what- ever weight it may deserve. Salt- marsh v. Bower, 22 Ala. 230. Contra. In Georgia it has been held that a defendant cannot use his an- swer for himself in another cause further than he could in the original cause, and not in either unless it ap- pears to be responsive to the bill. Daniel v. Johnson, 29 Ga. 207. Answer as Evidence Against Complain- ant. In ejectment by L. against R., an answer in a chancery suit brought by L. against C. to obtain a conveyance of the land in suit, to which land L. obtained title by purchase after answer in the chancery suit was filed, is com- petent evidence against L., so far as it contains any admissions or confessions which are competent to prove any ma- terial fact in controversy. Rees v. Lawless, 4 Litt. (Ky. ) 219. Answer to Bill of Discovery. A party cannot read as evidence for himself, in an action at law, his own answer to a bill of discovery; but where he pro- posed reading bill and answer, and the defendant said, "You may read the bill," and he then read both bill and answer held, that the verdict will not be set aside upon this ground, especially where the reading of the bill and answer could, not have varied the result. Thompson v. French, 10 Yerg. (Tenn.) 453. A party cannot use his answer to a bill of discovery as evidence in his fa- vor, in an action at law, unless it is introduced by his adversary; and the same rule applies to answers to inter- rogatories propounded by one party to the other, under the act of 1837. Montgomery Branch Bank v. Parker, 5 Ala. 731. Further Answer. When a bill in equity and answer are introduced as evidence, the court have no power, on motion, to order the defendant in equi- ty to answer further, in order that such answer may be used as evidence in the cause. Lowney v. Perham, 20 Me. 235. 2. Kiddie v. Debrutz, I Hayw. (N. Car.) 420. Thus the answer of a de- Answers as AX SWERS IN EQUITY PLEADING. Evidence. Hearsay Admissions- Where, however, the answer contains admis- sions stated merely on hearsay, it is not evidence against the defendant in a subsequent suit at law. 1 As Evidence for Defendant. When offered in evidence the whole answer must be taken together, so far as it is pertinent to the issue, whether its allegations are strictly responsive, or set up affirmative matter in avoidance. 3 Weight as Evidence. The truth of the answer should be weighed, like other evidence, subject to be overcome by the nature of its statements and by other proof. 3 16. Answers as Evidence in Issues Sent to Jury. Where issues in an equity court are sent down to be tried by a jury, the answer of the defendant cannot be read as evidence unless it is so directed in the order of the trial. 4 Defendant is not entitled as a matter of right to have his an- swer read as evidence on the trial of such issue, the question of whether or not it should be so read being dependent on the par- ticular facts and circumstances of the case. 5 fendant in equity is competent evi- dence against him, thdugh the plain- tiff at law was not a party to the suit in equity. Hunter v. Jones, 6 Rand. (Va.) 541- 1. Roe v. Ferris, 2 B. & P. 548. See also Stephens v. Vroman, 16 N. Y. 381. But it has been held, that if the answer contains matters stated as a fact, the admissions are competent evidence against defendant though it appears to have been made upon in- formation. Shaddock v. Clifton, 22 Wis. 115, 94 Am. Dec. 588. 2. Crocker v. Clements, 23 Ala. 296; McNutt v. Dare, 8 Blackf. (Ind.) 35: Saltmarsh v . Bower, 22 Ala. 230; Fant v. Miller, 17 Gratt. (Va.) 187; Roberts v. Tennell,3T. B. Mon. (Ky.)247; But- terworth v. Bailey, 15 Ves. 358; Or- mond v. Hutchinson, 13 Ves. 47; Earl of Bath v. Bathersea, 5 Mod. 9. 3. Aliens. McNew, 8 Humph. (Tenn.) 46. 4. Kinsey v. Grimes, 7 Blackf. (Ind.) 290 ; Jackson v. Harris, 63 N. Car. 261; Sturtevant v. Waterbury, I Edw. Ch.(N. Y.)442; Glynn v. Bank of Eng- land, 2 Ves. 38; Arnot v. Biscoe, i Ves. 95; Ibbotson v. Rhodes, 2Vern. 554. Illustration. Thus on the trial of an issue from chancery to try the title to a copyright, the bill and answer cannot be read to the jury unless it is so ordered by the court of chancery when the issue is ordered. King v. Force, 2 Cranch (C. C.) 208. 5. Sturtevant v. Waterbury, i Edw. i Encyc. PI. & Pr. 01. yi Ch. (N. Y.) 443 ; Cartwright v. God- frey, Murph. (N. Car.) 422 ; Ibbotson v. Rhodes, i Eq. Cas. Abr. 229 ; Only v. Walker, 3 Atk. 408; Milton v. Edge- worth, 5 Bro. P. C. 313. In Sturtevant v. Waterbury, I Edw. Ch. (N. Y.) 343, it is said: "In the present case the court directed an issue upon a question of fraud presented, not upon the answer and the testimony of one witness merely, but depending upon a variety of facts and circum- stances disclosed by the pleadings and testimony of several witnesses exam- ined on both sides, and all of such leave the question involved in doubt and of difficult determination. In such cases, if it is not a matter of right in the defendant to have his answer read to the jury (and I am strictly inclined to think it is not, since the issue is directed, not by his desire, but upon, the volition of the court itself), it is certainly a matter of dis- cretion with the court to give him the benefit of the evidence before the jury as fully as it exists here, and to the same extent to which he would be en- titled if the ciuse was to be decided without such trial." Illustrations. In Ibbotsonz/. Rhodes, i Eq. Cas. Abr. 229, the answer de- nied notice of the plaintiff's trial, but which notice the plaintiff proved by one witness. There was oath against oath, and issue was awarded; but as it would have been a matter of course for the jury to find for plaintiff if the Answers as ANSWERS IN EQUITY PLEADING. Evidence. Effect as Evidence. When so read it has not the same weight as it has on a hearing before the chancellor. The jury have the right to view it with the suspicion which attends the testimony of an interested witness, and to give it such credit only as they may think it entitled to. 1 cause had been submitted upon the testimony of this witness alone, and as the court would then be called upon to decree according to the verdict, which would in effect have been a de- cree upon the evidence of one witness against the positive denial of the an- swer, the court directed the answer to be read at the trial, not as conclu- sive evidence, but so that the defend- ant might have the benefit of his oath, and the jury give to it such weight as they should think proper. In Kincheloe v. Kincheloe, n Leigh (Va.) 409, it is said: "In a suit in chancery the object of which is to con- test the validity of a will on an issue devisavit velnon, under the Act of As- sembly, I do not think that the answer of the defendant becomes of necessity evidence in the cause on the question as to the validity of the will where no appeal is made to the conscience of the defendant, where no discovery is sought from him as to facts within his particular knowledge, but he is called on to answer merely as a step or pa - t of the proceedings through which it is necessary to pass for ob- taining a trial before jury. In such a case it would be unjust to make the answer evidence as to the validity of the will; * * * but in the case before us, an appeal is directly made to the conscience of the defendant by various searching interrogatories which he is called on to answer specially. Being thus called on and required to give evidence which might have operated against him, he ought on the question of chancery practice to be entitled to its benefit when it operates in his favor." Where an answer is replied to, and its allegations are disproved by more than one witness, it should not be read in evidence on the trial of an issue of fact in the cause. Cartwright v. God- frey, i Murph. (N. Car.) 422. 1. Kinsey v. Grimes, 7 Blackf. (Ind.) 290; Sturtevant v. Waterbury, i Edw. Ch. (N. Y.) 442; Giynn v. Bank of England, 2 Ves. 38; Hunter v. Wallace, i Overt. (Tenn.) 239. See also Humphreys v. Blevins, I Overt. (Tenn.) 178. 962 APPEAL BONDS AND UNDERTAKINGS. By WILLIAM P. AIKEN. I. DEFINITION, 964. II. PUEELY STATUTORY, 965. III. STATUTORY REQUIREMENTS MANDATORY, 965. IV. ORDERS OF COURT, 967. V. BY WHOM GIVEN, 967- VI. APPELLANTS EXEMPTED, 968. VII To WHOM PAYABLE, 970. VIII. ON SEPARATE APPEALS, 972. IX. EXECUTION OF BOND, 973. 1. Sealing, 973. 2. Signature, 973. 3. Execution by Agent, 976. X. DELIVERY, 977. XI. CONTENTS AND SUFFICIENCY, 977. 1. Amount, 977. 2. Description of Judgment, 981. 3. Condition of Bond, 983. XII. TIME FOR FILING SECURITY, 985. 1. Generally, 985. 2. Notice of Appeal, 989. 3. Date of Filing, 989. 4. Official Misconduct, 990. XIII AMENDMENT, 990. 1. When Bond is Void, 990. 2. When Unnecessary, 991. 3. Power to Amend, 993. 4. Construction of Statutes, 994. 5. Motion to Amend, 997. a. Where Made, 997. b. Time of Motion, 997. 6. Common-Law Bond, 998. XIV. APPEALS IN FORMA PAUPERIS, 999. XV. WAIVER OF DEFECTS BY APPELLEE, 1000. XVI MOTION TO DISMISS, 1002. 9 6 3 Definition. APPEAL BONDS. Definition. XVIL THE SURETIES, 1002. 1. Qualification, 1002. 2. Sureties on Bond in Suit, 1004. 3. Number of Sureties, 1004. 4. Exception to Sureties, 1005. XVIII APPROVAL OF BOND, 1007. 1. Generally, 1007. 2. How Made, 1008. 3. How Shown, 1009. 4. Effect, 1009. 5. Review of Approval, 1010. XIX. CONSTRUCTION or CONTRACT, ion. 1. Generally, ion. 2. When Liability Accrues, 1013. 3. foint Bond, 1014. 4. Measure of Liability, 1015. 5. Discharge of Sureties, 1016. 6. Change of Issues, 1017. XX. REMEDIES OF OBLIGEE, 1018. XXI. ESTOPPEL OF SURETIES, 1019. XXII. SUCCESSIVE APPEALS, 1020. XXIII. SUBROGATION, 1020. XXIV. RECORD ON APPEAL, 1021. I. DEFINITION. An appeal bond is a voluntary obligation entered into by the appellant and his sureties, as obligors, and the appellees, as obligees, conditioned that the obligors shall prose- cute the appeal with effect or answer to the liability created by the bond. 1 1. Ring v . Mississippi River Bridge tiff in error to prosecute the writ with Co., 57 Mo. 498; Staley v. Howard, 7 effect, and, if judgment was affirmed, to Mo. App. 377; Sauer v. Griffin, 67 Mo. satisfy and pay the debt and damages 654; Cook v. King, 7 111. App. 549; Boyd or costs awarded. 2 Tidd Pr. 1156. v. Boyd, 2 Nott & M. (S. Car.) 126; Distinction in Securities. An appeal Hodge v. Hodgdon, 8 Cush. (Mass.) bond is a specialty under seal; an un- 294; Hinkle v. Holmes, 85 Ind. 405; dertaking on appeal is an unsealed Ross v. Swiggett, 16 Ind. 433; Mason promise in writing ; a recognizance on v. Smith, II Lea (Tenn.) 67; White- appeal is a statutory obligation en- head v. Thorp, 22 Iowa 425; Erickson tered of record binding the appellant v. Elder, 34 Minn. 370; Matlock v. to do some act, such as to appear in State Bank, 7 Yerg. (Tenn.) 91. court, to pay the debt, etc. Anderson " It is an obligation conditional for Diet, of Law, 862. the prosecution of the appeal with Character of Contract. Where the effect, and if the appeal is prosecuted statute requires the obligors to per- with effect and the case is reversed form the judgment as affirmed, it is for error in law, the conditions are a contract for the payment of money avoided and the liability ceases." Ring if the judgment as affirmed is a ircrey v. Mississippi River Bridge Co., 57 judgment. Myers v. Shoreman, ro 111. 498. 111. 80; Reitan v. Goebel, 35 Minn. .'84. Bail in Error. Bail in error at com- It is a security for the performance of mon law was an obligation of the plain- the judgment as affirmed, not an un- 964 Purely Statutory. APPEAL BONDS. Statutory Requirements. II. PUEELY STATUTORY. The purpose of an appeal bond is to protect the appellee from vexatious litigation and the expenses of appeal. 1 At common law no bail in error was required of the party prosecuting a writ of error, and under modern practice the requirement that the appellant shall furnish security on appeal is purely statutory. 2 Where not authorized by statute no court or judge has power to demand it. 3 III. 'STATUTORY REQUIREMENTS MANDATORY. Under their general authority to regulate appellate procedure legislatures may require dertaking in a fixed sum as liquidated damages for delay. Cook v. King, 7 111. App. 549. 1. Santom v. Ballard, 133 Mass. 464; Folsom v. Cornell, 150 Mass. 14. 2. Kilbee v. Myrick, 12 Fla. 416; Bauknight v. Sloan, 17 Fla. 287; Archer v. Hart, 5 Fla. 234; Smith v. Curtis, 19 Fla. 786; Florida Orange Hedge Fence Co. v. Branham, 27 Fla. 526; Burgess v. O'Donoghue, 90 Mo. 299; Crawford v. Greenleaf, 48 Mo. App. 591; In JvClaasen, 140 U. S. 200; Swann v. Home, 54 Miss. 337; Winters v. Claitor, 54 Miss. 341. 3. Bonnett v. Townsend (Supreme Ct.), 17 N. Y. Supp. 566; Republic of Honduras v. Soto, 112 N. Y. 310. Hence it was held that where there was no statute authorizing the court to require a new undertaking on ap- peal on the insolvency or death of the sureties on the original undertaking, the appellate court had no authority to demand it. Bonnett v. Townsend (Supreme Ct.), 17 N. Y. Supp. 566; Crawford v. Greenleaf, 48 Mo. App. 592; Paddock-Hawley Iron Co. v. Graham, 48 Mo. App. 638. And where exacted of the appellant by a court, without statutory authori- . ty, it is void. People v. Cabannes, 20 Cal. 525. In Florida it has been held that un- der technical chancery practice a chan- cellor has power to require the appel- lant to give security to the appellee for the costs of the appeal. Robinson v. Roberts, 16 Fla. 156. Supersedeas Bond. Where a bond is required only to effect a stay of pro- ceedings on the judgment pending an appeal, the failure to give the bond does not effect the validity of the ap- peal. Bauknight v. Sloan, 17 Fla. 281; Kilbee v. Myrick, 12 Fla. 416; Winters v. Hughes, 3 Utah 438; Beach v. Southworth, 6 Barb. (N. Y.) 173; 96 Emerson v. Burney, 6 How. Pr. (N. Y. Supreme Ct.) 32; Nicholson v. Dunham, i Code Rep. (N. Y.) 119; Halsey v. Flint, 15 Abb. Pr. (N. Y. Supreme Ct.) 367; Davis v. Duffie, 8 Bosw. (N. Y.)69i; Niles v. Batter- shall, 26 How, Pr. (N. Y. Super. Ct.) 93; O'Neil v. Martin, i E. D. Smith (N. Y.) 404; Ten Broeck v. Hudson River R. Co., 7 How. Pr. (N. Y. Supreme Ct.) 137; Ritter v. Kreke- ler, 44 How. Pr. (N. Y. Super. Ct.) 445; Parsons v. Suydam, 4 Abb. Pr. (N. Y. C. PI.) 134; Reynolds v. Free- man, 4 Sandf. (N. Y.) 702; Allen v. Johnson, 2 Sandf.(N. Y). 629; Cook v. Pomeroy, 10 How. Pr. (N. Y. Supreme Ct.) 103. Construction of Statutes. A statute requiring security on appeal from judgments at law does not extend to appeals from chancery unless express- ly so stated. Robinson v. Roberts, 16 Fla. 156. A bond must be given on appeal taken in a special proceeding, where the law provides that it shall be taken similarly as an appeal from a decision by a court of general jurisdiction, and a bond is there required. Matter of Beckwith, 15 Hun (N. Y.) 327. A statute requiring an appellant to give a bond upon appeal from a judg- ment after a " trial at law on the mer- its" was held not to apply to judgments obtained by "default for not plead- ing." Davies v. Skidmore, 5 Hill (N. Y.) 501. A Code provision requiring an un- dertaking to be given on appeal from a judgment does not include appeals from orders unless expressly so stated. Emerson v. Burney, 6 How. Pr. (N. Y. Supreme Ct.) 32. The requirement of a bond on ap- peal from a judgment directing the sale or delivery of real property in- cludes a judgment of foreclosure. Gerald v. Gerald, 30 S. Car. 348. Statutory Requirements APPEAL BONDS. Mandatory. appeal bonds of the appellant in either civil or criminal cases. 1 The general principle that acts required by statute to perfect an appeal are jurisdictional, and must be strictly complied with to vest the appellate court with power to entertain the appeal, applies to statutes requiring appeal bonds. 2 Neither the appellate nor the trial court can dispense with the statutory security 3 or accept 1. In re Liquors of McSoley, 15 R. I. 610; Littlefield v. Peckham, I R. I. 500; Jones v. Robbins, 8 Gray (Mass.) 329; Hapgood v. Doherty, 8 Gray (Mass.) 373; Com. v. Whitney, 108 Mass. 5; Flint River Steamboat Co. v. Foster, 5 Ga. 194; Lincoln v. Smith, 27 Vt. 328; Beers v. Beers, 4 Conn. 535, 10 Am. Dec. 186; Biddle v. Com., 13 S. & R. (Pa.) 405. Trial by Jury. The legislative re- quirements of a recognizance on ap- peal in a criminal case, to secure a trial by jury before a higher tribunal, is not unconstitutional as violating the right of trial by jury where the condi- tions required are reasonable. In re Liquors of McSoley, 15 R. I. 608. 2. Indian -. Martin v. Kennard, 3 Blackf. (Ind.) 430; Silver v. Govenor, 4 Blackf. (Ind.) 15; Spader -v. Frost, 4 Blackf. (Ind.) 190; Sherry v. Fores- man, 6 Blackf. (Ind.) 56; Olds v. State, 6 Blackf. (Ind.) 91; State v. Lynch, 6 Blackf. (Ind.) 395; State v. Inman, 7 Blackf. (Ind.) 225; Marshall v. State, 8 Blackf. (Ind.) 162; Parker v. Hen- derson, i Ind. 62; Ellis v. State, 2 Ind. 262; Skelton v. Bliss, 7 Ind. 77; Butler v. Wadley, 15 Ind. 502; Myers v. State, 19 Ind. 127; Macey v. Tit- combe, 19 Ind. 135; Byers v. State, 20 Ind. 47; Caffrey v. Dudgeon, 38 Ind. 512. North Carolina Orr v. McBryde, 3 Murph. (N. Car.) 235; Forsyth v. M'Cormick, 2 Law Repos. (N. Car.) 472; Lytle v. Lytle, 90 N. Car. 649; Smith v. Abrams, 90 N. Car. 21; Roys- ter v. Burwall, 90 N. Car. 24; Anthony v. Carter, 91 N. Car. 229; McMillan v. Nye, 90 N. Car. 12; Harshaw v. Mc- Dowell, 89 N. Car. 181; Gruber v. Washington, etc., R. Co., 92 N. Car. i; McCauless v. Reynolds, 91 N. Car. 244; Turner v. Quinn, 91 N. Car. 92; In re Berry, 107 N. Car. 326. Missouri. Lengle v. Smith, 48 Mo. 276; Filley v. Walls, 4 Mo. 271; Slater v. Steamboat Convoy, 10 Mo. 513; Adams v. Wilson, 10 Mo. 341; Hayton v. Hope, 3 Mo. 53; Cochran v. Bird, 2 Mo. 141; Byrne v. Thompson, i Mo. 443; Green v. Castello, 35 Mo. App. 127. Massachusetts. Santom v. Ballard, 133 Mass. 464; Keene v. White, 136 Mass. 23; Wheeler Mfg. Co. v. Bur- lingham, 137 Mass. 581; Com. v. Park- er, 140 Mass. 439; Putnam v. Boyer, 140 Mass. 235. Louisiana. Dubreuil v. Dubreuil, 5 Martin (La.) 82; Davis v. Curtis, 3 Martin N. S. (La.) 142; State v. Heu- chert, 42 La. Ann. 270. New York. Jones v. Decker, 14 Abb. Pr. (N. Y. Supreme Ct.) 391; Blood v. Wilder, 6 How. Pr. (N. Y. Supreme Ct.) 446. Maine. Dolloff v. Hartwell, 38 Me. 54; Jordan v. McKenny, 45 Me. 306. Kentucky. Clinton v. Phillipi, 7 T. B. Mon. (Ky.) 118; Wickliffe v. Clay, i Dana (Ky.) 585. Other States. Bell v. Wheeler, 3 S. Car. 104; Com. v. Jackson, i Leigh (Va.) 485; Benedicts. Bray, 2 Cal. 251, 56 Am. Dec. 332; Law v. Nelson, 14 Colo. 409; Sutherland v. Putnam (Ari- zona, 1890), 24Pac. Rep. 320. See COM- MON-LAW BOND, XIII., 6, infra. Original Jurisdiction. The necessity of a bond is not dispensed with be- cause the appellate tribunal had orig- inal jurisdiction over the case ap- pealed. Green v. Castello, 35 Mo. App. 127. Recognizance. Where a recognizance is required no appeal is operative un- til such recognizance be duly given. Hayton v. Hope, 3 Mo. 53. 3. Architectural Iron Works Co. v. Brooklyn, 85 N. Y. 652; Staub v. Will- iams, i Lea (Tenn.) 36; State v. Wat- son, 33 Tex. 338; State v. Ivy, 33 Tex. 646. But where an appellant failed to file security, relying on an order of the trial court dispensing with it, and it appeared that the appeal was taken in good faith, the neglect was deemed excusable, and the appellant was al- lowed to supply the undertaking. Architectural Iron Works Co. v, Brooklyn, 85 N. Y. 652. 966 Orders of Court. APPEAL BONDS. By Whom Given. a security of a different character from that named in the stat- ute. 1 And it follows that where no bond is given as prescribed by the statute the appeal must be dismissed or stricken from the docket unless the requirement is deemed waived by the appellee.'-* IV. OKDEBS OF COURT. Where the statute authorizes the court granting an appeal to require an appeal bond to be given, the terms of the order must, like those of a statute, be substantially followed. 3 V. BY WHOM GIVEN. An appeal bond must be given in the name of a party to the suit or his legal representatives. 4 All co-parties 1. Erbon v. Chowan County, 98 N. Car. 75; Allen v. Walnut Hills, etc., Turnpike Co., 12 Cine. L. Bull. (Ohio) 168; King v. McCann, 25 Ala. 471; Laturner v. State, 9 Tex. 451; Bacon v. State, 10 Tex. 98; Corbin v. Las- well, 48 Mo. App. 626; State v. Thomp- son, 49 Mo. 189; St. Louis Dairy Co. v. Sauer, 16 Mo. App. 4; Nurse v. Porter, 18 N. H. 57; Steamboat Lake of the Woods v. Shaw, 2 Greene (Iowa) 91; Cuddelback v. Parks, 2 Greene (Iowa) 148. Certified Check. The court cannot therefore accept a certified check as a legal substitute for an undertaking, although it be for the same amount. Allen v. Walnut Hills, etc., Turnpike Co., 12 Cine. L. Bull. (Ohio) 168; Mc- Intyre v. Strong, 48 N. Y. Super. Ct. 299. Recognizance and Bond. Where a recognizance is required by the stat- ute an appeal bond is insufficient, al- though it otherwise complies with the statutory conditions. Laturner v. State, 9 Tex. 451; Bacon v. State, 10 Tex. 98. Even the Actual Payment of Costs has been held an insufficient substitute for the appeal bond required only to se- cure them. King v. McCann, 25 Ala. 471. Where Form is Disregarded. An un- dertaking in lieu of the statutory bond required is valid and effectual to per- fect the appeal where the statute re- quires the appellate court to regard the substance of the obligation rather than the form. Wilson v. Morrell, 5 Wash. 654. Or where no particular form of allegation is required, and the undertaking complies otherwise with its requiremants. Conklin v. Dutcher, 5 How. Pr. (N. Y. Supreme Ct.) 388. But a statutory direction that an undertaking shall be in writing is mandatory. Harshaw v. McDowell, 89 N. Car. 181. Unnecessary Bond. Where the stat- ute requires only a simple acknowl- edgment in writing an appeal bond formally approved by the trial justice is a valid although unnecessary sub- stitute. Williams v. McConico, 27 Ala. 572; Satterwhite z: State, 28 Ala. 65; Riddle v. Hanna, 25 Ala. 484. 2. State v. Stout, 28 Tex. 327; State v. Paschal, 22 Tex. 584; State v. Fath- eree, 23 Tex. 202; Dugganw. Noell, 30 Tex. 451; Golden v. State, 32 Tex. 737; McLornez/. Russell, 29 Tex. 127; Lang- ley v. Warner, i N. Y. 606; Kelsey v. Campbell, 38 Barb. (N. Y.) 238; Dresser v. Brooks, 5 How. Pr. (N. Y. Ct. of App.) 75; Mays v. King, 28 Ala. 690; King v. McCann, 25 Ala. 471; Ten Brook v. Maxwell, 5 Ind. App. 353; Law v. Nelson, 14 Colo. 409; Thomp- son v. Thompson, 24 Wis. 515; French v. Snell,37 Me. 100; Rinehardt v. Vail, 103 Ind. 159; Webb v. Simpson, 105 Ind. 327. See also WAIVER, XV., infra As to filing new bond, see AMEND- MENT, XIII., infra. 3. Beall v. Hileman (111., 1886), 2 West. Rep. 899; Carson v. Merle, 4 111. 168; Ryder v. Stevenson, 4 111. 539; Watson v. Thrall, 8 111. 69; John- son v. Barber, 9 111. n; Niagara v. Martin, 42 111. 106. Conditions. Where the conditions to be embraced in the bond are not pre- scribed by the statute, the order must prescribe them or it is ineffectual; and in such a case the failure to file such a bond is not ground for dismissal. Pollock v. People, i Colo. 83. 4. Savannah, etc., R. Co. v. Clark, 23 Fla. 308; Armson v. Forsyth, 40 111. 49; Partridge v. Snyder, 78 111. 519; Appanovce v. Kueff, 2 111. App. 583; Gardner v. Chambersburgh 19 967 Appellants Exempted. APPEAL BONDS. Appellants Exempted. united in interest and appealing must be joined therein. 1 Parties allowed to come in and join in the appeal must also unite in the appeal bond, or they do not become parties. 2 Where one party to a joint judgment appeals in the name of all, the appeal bond need not recite the fact if it shows that the whole cause is brought up. 3 Separate parties who are aggrieved by the same judgment may join in the appeal bond on appeal therefrom. 4 Official Capacity. An appellant should give the appeal bond in the capacity in which he appeals. 5 Where appealing in an official or representative capacity the bond may be given in that capacity without subjecting him to personal liability. 6 VI. APPELLANTS EXEMPTED. No appeal bond is required of the state as appellant, since it is not within the contemplation of the statute. 7 Public corporations, executors, and administrators are generally expressly exempted by statute. 8 111. 99; M'Alister v. Serice, 7 Yerg. (Tenn.) 27?- In Name of Town. On an appeal by a town the bond should be signed in the name of the town by the proper official. Armson v. Forsyth, 40 111. 49. Party in Interest. Where the real appellant is the party in interest the appeal bond must be given in the name of the nominal party to the rec- ord. Armson v. Forsyth, 40 111. 49. Bond in Name of Stranger. A bond given in the name of a stranger to the record, or in the name of persons not parties to the order granting the ap- peal, does not perfect it. Propeller Niagara v. Martin, 42 111. 106. 1. Carson v. Merle, 4 111. 168; Wat- son v. Thrall, 8 111. 69; Johnson v. Barber, 9 111. i; Ryder -v. Stevenson, 4 111- 539J Wittenborg v. Murphy, 40 111. 46; Hileman v. Beale, 115 111. 355; Frank v. Thomas, 35 111. App. 547; Propeller Niagara v. Martin, 42 111. 106; Dingier v. Strawn, 36 111. App. 564; Price v. Thomas, 4 Md. 514. 2. Dunbar v. Creditors, 2 La. Ann. 727. 3. Deslonde v. Carter, 28 Ala. 541; Savage v. Walsh, 24 Ala. 293. 4. Schlieder v. Martinez, 38 La. Ann. 847. Where a single party is entitled to appeal upon the refusal of the rest, his appeal bond alone is good. Weeks v. Sego, 9 Ga. 204. 5. Smith -v. Dennison, 94 111. 582; Beardsley v. Hill, 6l 111. 354; Craw- ord v. Alexander, 14 La. Ann. 719. 6. Smith v. Dennison, 94 111. 582; Beardsley v. Hill, 61 111. 354. Unless the appeal also concerns his individ- ual rights, in which case he must give also his individual bond. Crawford -v. Alexander, 14 La. Ann. 719. Where the condition of the appeal bond recites the representative capac- ity of the obligor, and his official desig- nation is added to his signature, it can- not be considered his personal bond. Beardsley v. Hill, 61 111. 354. Sufficiency of Bond. Where an indi- vidual brings writ in an official capac- ity for an organization, a bond fur- nished by him as such official is suffi- cient to perfect an appeal. St. Pat- rick's Church v. Consumers' Ice Co., 44 La. Ann. 1021. Conditions of Such Bond. The condi- tion of a bond given by an administra- tor in his capacity as such is properly conditioned to pay the decree in the due course of administration. Smith v. Dennison, 94 111. 582. 7. People v. Clingan, 5 Cal. 389; Holmes v. Mattoon, in 111. 28, 53 Am. Rep. 602. 8. Statutes exempting political cor- porations from the requirement of giving an appeal bond do not violate constitutional provisions forbidding special legislation. McClay v. Lin- coln, 32 Neb. 412; Holmes v. Mattoon, in 111. 28, 53 Am. Rep. 602: Chester v. Wilson, 15 111. App. 239; Hanover Tp. Drainage Dist. v. Kelsey, 120 111. 483. In Holmes v. Mattoon, in 111. 28, 53 Am. Rep. 602, it was said: " It is believed that in no government in an- cient or modern times has it been re- quired to give bond for the payment of costs of litigation before bringing suit or on appeal or on error. * * * This being true of the state govern- 968 Appellants Exempted. APPEAL BONDS. Appellants Exempted. Construction of Exemptions. Statutory exemptions will not be ex- tended by implication beyond the specified cases, as they are exceptions to the general policy of the law in protecting appel- lees. 1 ment, it is necessarily true of all its officers, agents, and instrumentalities while employed in seeking the rights of the government in courts of justice. Hence officers suing for or defending the rights of the state are acting for and in the stead of the state, and to that extent not only may but should be permitted to do so on the same terms and for the same reasons that the state is permitted to sue for or defend its rights. Again, municipalities such as counties, cities, villages, towns, school districts, and, in the language of the act, ' all other municipal corpo- rations,' and the corporations of all charitable, educational, penal, or re- formatory institutions under the pat- ronage and control of the state, and all public officers when suing or defending in their official capacity for the benefit of the public, are the in- struments of the state to carry out its powers for the public welfare; and in exercising their powers and enforcing public rights they act as agents, and may have extended to them the same exemptions in suits as belong to the state." Towns. A town as a municipal cor- poration is within the terms of a stat- ute exempting incorporated "cities" from the requirement of filing appeal bonds. Elma v. Carney, 4 Wash. 418. A township drainage district is a municipal corporation within the in- tent of such a statute. Hanover Tp. Drainage Dist. v. Kelsey, 120 111. 482. Officials. Public officials appealing in behalf of political corporations ex- empted by law need not furnish an appeal bond. Merchants' Mut. Ins. Co. v. Assessors, 40 La. Ann. 371; States. New Orleans, 34 La. Ann. 467; Smith v. New Orleans, 43 La. Ann. 726 ; People v. Marion County, 10 Cal. 344; Warden v. Mendocino County, 32 Cal. 655. Trustees. Statutes exempting per- sons acting in a trust capacity as ad- ministrators and executors apply to appeals affecting the interests of the trust estate only. Hudson v. Gray, 158 Miss. 589; Haliman v. Dibrell, 51 Miss. 96; Hunter v. Thurmon, 25 Miss. 463; Riddle v. Phipps, 2 Ohio Cir. Ct. Rep. 61; McCay v. Devers, 9 Ga. 184; Mer- chants' Bank v. Rawls, 21 Ga. 289; Irving v. Melton, 27 Ga. 330. But where such trustee appeals to protect his own individual interests, or to protect his sureties on an ad- ministration bond, he must give an appeal bond like any other appellant. Haliman v. Dibrell, 51 Miss. 96; Hun- ter -v. Thurmon, 25 Miss. 463; Taylor v. McCullom, 5 Cine. L. Bull. (Ohio) 414; Hudson v. Gray, 58 Miss. 589. Or where the appeal affects both his private and his representative inter- ests, as an appeal by the committee of a lunatic from a judgment against him on accounting. Butler v. Jarvis, 117 N. Y. 115. Married Women. Statutes exempting married women from the obligation of giving an appeal bond apply although the appeal affects her separate prop- erty alone. Armstrong v. Nelson, 57 Ala. 556; Ware v. McDonald, 62 Ala. 81; Coleman v. Smith, 52 Ala. 259. Substituted Appellant. Where, on the death of the appellant to the rec- ord, the administrator has been sub- stituted, he cannot be required to fur- nish additional security in place of an insolvent surety where statutes exempt trustees. Lattimer v. Ware, 2 Kelly (Ga.) 272. An appeal by an administrator from a decree revoking his letters of ad- ministration is not a proceeding had upon the estate of which he is execu- tor within the meaning of a Code pro- vision that no bond need be given in such cases. In re Danielson, 88 Cal. 480. 1. State v. Judge, 18 La. 444; Von Schmidt v. Widber (Cal., 1893), 32 Pac. Rep. 532; Crismon v. Bingham, etc., R. Co., 3 Utah 249. County Official. A statute exempting state officials will not be extended by implication to county officers. Von Schmidt v. Widber (Cal., 1893), 32 Pac. Rep. 532. Tax Collector. A collector of taxes is not a trustee of taxes collected within the meaning of a statute ex- empting trustees from giving appeal bond. Crismon v. Bingham, etc., R. Co., 3 Utah 249. 969 "o Whom Payable. APPEAL BONDS. To Whom Payable. VII. To WHOM PAYABLE. An appeal bond must be made pay- able to the person designated in the statute, and where no person is designated, to the appellee. 1 Where no obligee is named, or one is named other than the statute requires, the appeal bond is void, and the appeal will be dismissed on motion, 2 unless the appellate court has power to allow a new bond to be filed. 3 Joinder of Unnecessary Appellants. Where- persons exempted by statute appeal, the joinder of parties as ap- pellants who have no substantial in- terest in the appeal does not make a bond essential to perfect it. Ruch v. Biery, no Ind. 444. Decree for Money. A statute requir- ing an appeal bond only where the judgment or decree is for the payment of money must be complied with al- though different relief be included in the same decree. Flynn v. Des Moines, etc., R. Co., 62 Iowa 521. Appeal by Ward. A statute requir- ing an appeal bond on appeal from probate does not include the appeal by a ward from a decree dismissing a petition for removal of her guardian. Atwood v. Warwick, 17 R. I. 537. Appellant Non Compos Mentis. A person appealing from a decision ad- judging him non compos mentis is not required to give an appeal bond, al- though the statute makes no exemp- tion in his favor, since, if the judg- ment is affirmed, it will in effect de- clare him to have been incompetent to enter into the bond. M'Donald v. Morton, i Mass. 543. Surviving Partners. A surviving partner administering on partnership effects has all the rights and liabilities of a general administrator, and is exempted from giving an appeal bond where a statute exempts the adminis- trator. In re Partnership Estate of Bruening, etc., v. Oberschelp, 42 Mo. 278. Raising Question of Exemption. The proper mode of raising the ques- tion whether the trial court erred in requiring security for costs under a statute making exemptions is by man- damus to compel the granting of the appeal without bond, and not by as- signment of error. Johnson v. Ward, 82 Ala. 487; Roberts v. Taylor, 64 Ala. 549- Discretionary Power. Where a court has discretionary power to dispense with security on appeals by executors it is sufficient if the judgment is an- swerable out of the assets of the estate. It is not required that it should have been rendered against the executor in his representative capacity. Kirsch v. Derby, 93 Cal. 574. 1. Garrett v. Shore, 15 R. I. 538; Phelps v. Call, 7 Ired. (N. Car.) 262; Price v. Halsed, 3 Mo. 461; Smith v. Montreil, 26 Mo. 578; Bigler v. Wal- ler, 12 Wall. (U. S.) 142; Hill -v. Chi- cago, etc., R. Co. 129 17. S. 170; White v. Moerlidge, 7 Ohio Cir. Ct. Rep. 348; Johnston v. Letson (Arizona, 1892), 29 Pac. Rep. 893; Reilly v. Atchinson (Arizona, 1893), 32 Pac. Rep. 262. Infant Appellee. Where the appellee is an infant suing by his next friend, the appeal bond must be given to him, and the next friend need not be named therein. Cooper v. Maclin, 25 Ala. 299. " The next friend is not, strictly speaking, a party to the cause. The infants sue by him, and his name is placed upon the record in order that the court may have some person be- fore it who is responsible for the costs and conduct of the cause." Cooper v. Maclin, 25 Ala. 299. 2. Reilly z-. Atchinson (Arizona, 1893), 32 Pac. Rep. 262; Johnston v. Letson (Arizona, 1892), 29 Pac. Rep. 893; Gar- rett v. Shore, 15 R. I. 538; Phelps v. Call, 7 Ired. (N. Car.) 262; Harper v. Archer, 4 Smed. & M. (Miss.) 99, 43 Am. Dec. 472; Alexander v. Smith, 4 Smed. & M. (Miss.) 258. A Bond Payable to a Stranger to the record is void unless the statute names him as payee. Garrett v. Shore, 15 R. I. 538; Davenport v. Fletcher, 16 How. (U. S.) 142; Smyth v. Strader, 12 How. (U. S.) 327. 3. Corey v. Lugar, 62 Ind. 60; Big- ler v. Waller, 12 Wall. (U. S.) 149; The Dos Hermanos, 10 Wheat. (U. S.) 306; Brobst v. Brobst, 2 Wall. (U. S.) 97- The court cannot without express statutory authority supply the name of the appellee by construction where the maker of the bond has omitted it. Garrett v. Shore, 15 R. I. 538; unless the bond is made payable by the stat- 970 To Whom Payable. APPEAL BONDS. To Whom Payable. Joint Obligees. All the parties to the appeal interested to maintain the judgment should be made joint obligees. 1 ute to an official payee. Nugent v. McCaffrey, 33 La. Ann. 271; Schlieder v. Martinez, 38 La. Ann. 847. Payable to State. An appeal bond payable to the state and not to the ap- pellee is void and unamendable, Price v. Halsed, 3 Mo. 461; or to the court instead of appellee, White v. Moerlidge, 7 Ohio Cir. Ct. Rep. 348. Where suit is brought in the name of the state on relation of a private indi- vidual it may be made payable either to the relator or the .state. Spalding v. People, 2 How. (U. S.) 66. In Tax Suits the appeal bond should be made payable to the municipality, where it brings the suit, not to the people or for the use of the people. Nashville v. Weiser, 54 111. 245; Grif- fin v. Belleville, 50 111. 422. Assignor. The assignor of an as- signed judgment appealed from is still the "adverse party" of the statute, but the assignee may have recourse thereon. May v. Kellar, I Mo. App. 381. Action on Official Bond. Where the bond is given to an official instead of to the appellee, the appellate court cannot, on affirmation of the judg- ment appealed from, render judgment directly against the sureties; an in- dependent action should be brought on the bond. State v. Montgomery, 74 Ala. 226. 1. Bigler v. Waller, 12 Wall. (U. S.) 142; Hill v. Chicago, etc., R. Co., 129 U. S. 170; Zeigler v. Hunter, 16 La. Ann. 165; Cotton v. Sterling, 19 La. Ann. 137; Michael v. Babin, 19 La. Ann. 197; Hickman v. Bailey, 9 La. Ann. 485; Bacchus v. Moreau, 4 La. Ann. 313; Lebeau v. Trudeau, 10 La. Ann. 164; Conery v. Webb, 12 La. Ann. 282; Williams v. Courtney, 8 La. Ann. 63; Nouret v. Armant, 12 La. Ann, 71; Dow v. Hardy, 13 La. Ann. 441; Ma- ples v. Reed, 15 La. Ann. 496; Bronson v. Balch, 19 La. Ann. 39; Knox v. Du- plantier, 20 La. Ann. 328; Newson v. Creswell, 10 La. Ann. 232; Hamilton v. Phillipi, ii La. Ann. 675; Long v. Barnes, 13 La. Ann. 392; Cummings v. Irwin, 14 La. Ann. 315; Scrivinerz'. Maxey, 6 Martin, N. S. (La.) 317; Jen- kins v. Bonds, 3 La. Ann. 339; Percy v. Millandon, 6 La. 586; Anderson v. Cade, 10 La. 269; Lynch v. Brewer, 16 La. 247; Brigham v. Taylor, 2 La. Ann. 906, 10 La. Ann. 232; Dunlap v. Price, 10 La. Ann. 155, n La. Ann. 409, II La. Ann. 674; Beer v. Creditors, 12 La. Ann. 774, 12 La. Ann. 71; Mc- Crindell's Succession, 13 La. Ann. 231; Armstrong v. Creditors, 8 La. Ann. 367; Simmons v. Creditors, 12 La. Ann. 765. Who is Adverse Party. An adverse party within the meaning of a statute requiring an appeal bond to be given to such is one having an interest conflict- ing with the reversal or modification of the decision appealed from. Thomp- son v. Ellsworth, i Barb. Ch. (N. Y.) 624. Parties below having no substantial interest in maintaining the judgment need not be made payees. Rachel v. Rachel, n La. Ann. 687. Separate Adverse Parties. Where the interests of adverse parties are distinct and conflicting a separate bond should be given to each. Thompson v. Ellsworth, I Barb. Ch. (N. Y.) 624. The names of those for whose use the writ is instituted need not be named. Bank of Tennessee v. Mc- Kee, 2 La. Ann. 461. An appeal bond payable only to some of the appellees is substantially defective, and will authorize the dis- missal of the appeal. Chandler v, Lappington, 36 Tex. 272. So where a judgment was rendered in favor of M. L. & Co., and an appeal bond was given to H. L. Co., it was held fatally defective. Lynch v. Brew- er, 16 La. 247. But the validity of an appeal is not destroyed because the bond, besides being given to obligees as to whom the suit was dismissed below, is also given to a party against whom a de- cree was rendered below. Hill v. Chicago, etc., R. Co., 129 U. S. 170. Intervenors. Where an appeal bond is given by intervenors it must run to both plaintiffs and defendants. Greenwade v. Smith, 57 Tex. 195. "Appellee." A statute requiring an appeal bond to be given to the " appel- lee " intends all joint appellees. Young v. Russell, 60 Tex. 684; Brown v. Le- vine, 6 Port. (Ala.) 414. Sufficient Reference. All the joint appellees need not be mentioned by name " if the appeal bond so refers to them as to make them parties thereto 971 On Separate Appeals. APPEAL BONDS. On Separate Appeals. VIII. ON SEPARATE APPEALS. Where distinct appeals are taken from separate judgments and orders, a separate obligation, condi- tioned as the statute requires, must accompany each appeal. 1 Where separate decisions are consolidated and brought up on a single appeal, one appeal bond is sufficient. 3 and identify them with certainty." Bacchus v. Moreau, 4 La. Ann. 313; Lebeau v. Trudeau, 10 La. Ann. 164; Williams v. Courtney, 8 La. Ann. 63; Blanc v. Cousin, 8 La. Ann. 71; Hickman v. Bailey, 9 La. Ann. 485; Smith -v. Montreil, 26 Mo. 578; as a bond payable to appellees, " et a/," Bacchus v. Moreau, 4 La. Ann. 313. 1. Sharon v. Sharon, 68 Cal. 327; Horn -v. Volcano Water Co. , 18 Cal. 141 ; Bornheimer v. Baldwin, 38 Cal. 671; Berniaud v. Beecher, 74 Cal. 617; Cor- coran v. Desmond, 71 Cal. 100; Home, etc., Assoc. v. Wilkins, 71 Cal. 626; McCormick v. Belvin, 96 Cal. 182; Cronin v. Bear Creek Gold Min. Co., 2 Idaho 1146; Eddy v. Van Ness, 2 Idaho 93; Mathison v. Leland, 2 Idaho 712; Schermerhorn v. Anderson, I N. Y. 430. Specific Reference. Where one un- dertaking is erroneously given to cove,r two distinct appeals, it will be void as to both unless it can be determined from the context to which of the two appeals it refers. Mathison v. Leland, I Idaho 712; Eddy v. Van Ness, 2 Idaho 93; Cronin v. Bear Creek Gold Min. Co., 2 Idaho 1146; Corcoran v. Des- mond, 71 Cal. roo; Home, etc., Assoc. v. Wilkins, 71 Cal. 626; McCormick v. Belvin, 96 Cal. 182. And in such a case the appellant cannot be allowed to file new undertakings, as this would be in effect to take a new appeal after the expiration of the statutory period. Hastings v. Halleck, 10 Cal. 31; Home, etc., Assoc. v. Wilkins, 71 Cal. 626. Undertaking. But several undertak- ings may be embraced in the same in- strument, so as to cover distinct ap- peals in the same case by the same parties. Sharon v. Sharon, 68 Cal. 327- Judgment for Distinct Sums. One undertaking or appeal bond in the statutory amount is sufficient to per- fect an appeal from a judgment, al- though two distinct sums are adjudged due to different defendants therein. Smith v. Lynes, 2 N. Y. 569. Distinct Orders. One undertaking will not suffice to perfect an appeal from two different orders, although one or- der be unappealable. The undertak- ing in such case may be amended on terms by striking out so much as re- lates to the non-appealable order. Schermerhorn v. Anderson, i N. Y. 430; Corcoran v. Desmond, 71 Cal. 100. An appeal bond given by one party appellant does not bind the obligors in appeals taken by other parties in the same case. Sturgis v. Rogers, 26 Md. I. 2. Clark's Succession, 30 La. Ann. 801; Elder -v. New Orleans, 31 La, Ann. 500; Edgecomb v. His Creditors, 19 Nev. 151; Cooper v. Maddan, 6 Ala. 432; Gregorys. Dodge, 3 Paige (N.Y.) 90. Where One Obligation is Sufficient. In Edgecomb v. His Creditors, 19 Nev. 151, one undertaking was held sufficient on one appeal from several orders, all relating to the question whether certain property was exempt from execution. And where one order substantially embraced a prior order made in the same cause and entered on the same day, one appeal bond was held suf- ficient. Gregory v. Dodge, 3 Paige (N.Y.) 90. And where several judgments were rendered against the same parties, and they were all removed by the same proceeding, held, that the trial court might direct one appeal bond to cover all. Cooper v. Maddan, 6 Ala. 432. Where a judgment is rendered against the surety and principal on an injunction bond ordering them to pay a certain sum in solido, they may unite and give one appeal bond. Elder v, New Orleans, 31 La. Ann. 500. California. In California one under- taking may be given to cover an ap- peal taken from a judgment and an order denying a new trial in the same cause embraced in the same transcript and notice of appeal. But the under- taking must expressly recite that the appeal is taken from the order as well as from the judgment, or the appeal from the order will be dismissed, un- 972 Execution of Bond. APPEAL BONDS. Sealing Signature. On Second Appeal. Where the first appeal is dismissed or falls for want of prosecution the appeal bond falls with it, 1 and on a sec- ond appeal a new bond must be given to perfect it. a IX. EXECUTION OF BOND 1. Sealing. Where an appeal bond is required the instrument given must have the essential requisites of a bond. 3 Where bonds are required to be sealed, and it is without a seal or its legal equivalent, it is defective as a statutory obligation. 4 2. Signature. The obligation of the appellant to perform the judgment rendered on appeal results from the judgment itself, 5 and an appeal bond is accordingly valid without his signature, 6 unless less the respondent has waived the defect or is estopped from objecting. Forni v. Yoell, 95 Cal. 442; People v. Center, 61 Cal. 191; Page v. Page, 77 Cal. 83; Corcoran v. Desmond, 71 Cal. 100; Home, etc., Assoc. v. Wilkins, 71 Cal. 626; Duffy v. Greenebaum, 72 Cal. 157; Berniaud v. Beecher, 74 Cal. 617; Wood v. Pendola, 77 Cal. 82; Schurtz v. Romer, 81 Cal. 245; Crew v. Diller, 86 Cal. 555; Pacific Paving Co. v. Bol- ton, 89 Cal. 155; Sharon v. Sharon, 67 Cal. 185; Williams v. Dennison, 86 Cal. 430; Chester v. Bakerfield Town Hall Assoc., 64 Cal. 42; Webb v. Trescony, 76 Cal. 621; Lee Chenk v. Quan Wo Chong, 81 Cal. 224. 1. Lavigne v. May, 2 Martin, N. S. (La.) 628; Kelsey v. Campbell, 38 Barb. (N. Y.) 238. 2. Lavigne v. May, 2 Martin, N. S. (La.)628; Kelsey v. Campbell, 38 Barb. (N. Y.) 238. 3. State v. Thompson, 49 Mo. 189. 4. Corbin v. Laswell, 48 Mo. App. 626; State v. Thompson, 49 Mo. 189; St. Louis Dairy Co. v. Sauer, 16 Mo. App. 4; State v. Thompson, 49 Mo. 189; Cuddelback v. Parks, 2 Greene (Iowa) 148. Recognizance and Undertaking. Seal- ing is not essential to a recognizance, Cuddelback v. Parks, 2 Greene (Iowa) 148; or to an undertaking, Fisher v. Trevor, 7 Cine. L. Bull. (Ohio) 322. Texas. In Texas no seal or scroll is required to validate an appeal bond, as its essentials are referred to the civil law in force in Texas prior to its statehood. Boney v. Waterhouse, 35 Tex. 180; Foster v. Champlin, 29 Tex. 22; Russell v. McCampbell, 27 Tex. 31. 5. Richardson v. Terrel, 9 Martin (La.) 34- 6. North American Coal Co. v. Dyatt, 4 Paige (N. Y.) 274; Florida Orange Hedge Fence Co. v. Branham, 27 Fla. 526; Anonymous, Hard. (Ky.) 156; Harrison v. Bank of Ky., 3 J. J. Marsh. (Ky.) 375; Shelton v. Wade, 4 Tex. 148; Lindsay v. Price, 33 Tex. 280; Thorn v. Savage, i Blackf. (Ind.) 51 ; Richardson v. Terrel, 9 Martin (La.) 34; Doane v. Farrow, 10 Martin (La.) 74; Mon v. Gariner, 6 La. 324; Wells v. Lamothe, roLa. 410; Fisk v. Friend, 3 Rob. (La.) 264; Marshall v. More- house, 14 La. Ann. 701; Williams v. Hood, ii La. Ann. 113; Vallance v. Sawyer, 4 Me. 62; Walker r/.Williams, 88 N. Car. 7; McMinn v. Patton, 92 N. Car. 371; Drouilhat v. Rawner, 13 Ore- gon 493; Geller v. Puchta, i Ohio Cir. Ct. Rep. 30; Johnson v. Johnson, 31 Ohio St. 131; Coil v. Davis, Wright (Ohio) 164; Pasley v. McConnell, 38 La. Ann. 470; Clark v. Strong, 14 Neb. 229; Eaton v. Nash (Tex. App., 1890), 16 S. W. Rep. 788; Railsbackz/. Greve, 58 Ind. 72; Hinkle v. Holmes. 85 Ind. 405; Keene v. Deardon, 8 East 298; Pettee v. Flewellen, 2 Ga. 237; Bellinger v. Gardiner, 12 How. Pr. (N. Y. Super. Ct.) 381; Shaw v. Tobias, 3 N. Y. 188; Thompson v. Blanchard, 3 N. Y. 335; Curtis v. Richards, 9 Cal. 33; Gregory v. Levy, 12 Barb. (N. Y.) 612. Massachusetts. In Massachusetts by statute an appeal bond executed by one other than a party is sufficient if good reason is shown why it is so exe- cuted and it is duly approved. Welles- ley v. Washburn, 156 Mass. 359. Undertaking. An undertaking is an original and independent contract on the part of the sureties to which the signature of the principal is not essen- tial. Sacramento v. Dunlap, 14 Cal. 423; Curtis v. Richards, 9 Cal. 38; Tissot v. Darling, 9 Cal. 278. It follows that if an appeal bond is executed on behalf of all the joint appellants by a portion of them, it is good when properly executed by sure- 973 Execution of Bond. APPEAL BONDS. Signature. the statute expressly requires "execution by" the appellant. 1 Joint Appellants. Where the bond must be executed by the appel- lant, all the joint appellants having an appealable interest must sign. 5 * Signature of Sureties. The bond must be properly signed and exe- cuted by the sureties, or it is void. 3 It is not sufficient that their names appear in the body of the bond without their signature. 4 But where they sign with the intent of assuming suretyship, the validity of the bond is not affected by the circumstance that their names do not appear in the body. 5 ties. Warner v. Whittaker, 5 Mich. 241; Deslonde v. Carter, 28 Ala. 541; Savage v. Walsh, 24 Ala. 293; Florida Orange Hedge Fence Co. v. Bran- ham, 27 Fla. 526. 1. Matter of King's Will, 2 Edw. Ch. (N. Y.) 428; Ex p. Brooks, 7 Cow. (N. Y.)428; Curtis v. Richards, 9 Cal. 33; Scarborough v. State (Tex. Crim. App., 1892), 20 S.W. Rep. 384; Dahl v. Tibbats, 5 Wash. 259; Nichols v. St. Louis County, iMo. 357; State z'.Austin, 35 Minn. 51; Bean v. Parker, 17 Mass. 591; Wood v. Washburn, 2 Pick. (Mass.) 24; Russell v. Annable, 109 Mass. 72; Bunn v. Jetmore, 70 Mo. 228; Hall v. Parker, 37 Mich. 570, 26 Am. Rep. 540; Richardson v. Craig i Duer (N. Y.) 666; Republic of Mexico v. De Arrangois, u How. Pr. (N. Y. Super. Ct.) 6; Newton v. Haggerman, i Browne (Pa.) 95; Day -v. Pickett, 4 Munf. (Va.) 4; Rootes v. Holliday, 4 Munf. (Va.) 323; Hardaway v. Rider, i Smed. & M. (Miss.) 657. In such cases it is held that the lia- bility of the sureties rests upon the consideration existing between the principal and the obligee, and that the principal must sign in order that the consideration may appear on the face of the instrument. Ex p. Brooks, 7 Cow. (N. Y.) 428. By Married Woman. Where a mar- ried woman takes an appeal from a judgment rendered against her and her husband, she may execute the appeal bond in her own name without joining her husband, but it will not vitiate the bond if he joins in it; sig- nature by the husband alone is not sufficient. Childress v. Taylor, 33 Ala. 185; Wood v. Noll, 5 La. Ann. 179; Allen v. Landreth, 7 La Ann. 650; Day v. Gordon, 9 La. Ann, 183; De Gruy v. Aiken, 43 La Ann. 798. Joint Appellants. Where the signa- ture of the appellant is not required, signature by some of the joint appel- lants does not invalidate the bond or alter its legal effect. McClellan v. Pyeatt, 49 Fed. Rep. 259; Murrell v. Murrell, 33 La. Ann. 1233. By Partnership. Signature by a part- nership as appellant instead of by the individual members of the firm is a fatal defect unless all proceedings were brought in that name without objec- tion. Burchard v. Covins, 77 Tex. 365; Hedger v. Armistead, 60 Tex. 277- 2. Hileman v. Beale, 115 111. 355; Carson v. Merle, 4 111. 168; Ryder v. Stevenson, 4 111. 539; Watson -v. Thrall, 8 111. 69; Johnson v. Barber, 9 111. i; Frank v. Thomas, 35 111. App. 547 ; Andre v. Jones, i Colo. 489; Cody v. Filley, 4 Colo. 342; Gordon v. Robert- son, 26 Ga. 410; Singler v. Strawn, 36 111. App. 563. In Colorado it is held that an appeal bond executed only by a portion of the joint appellants is not amendable. Andre v. Jones, I Colo. 489. In United States Practice an appeal bond signed by only a portion of the joint appellants is good where duly- approved by the trial judge. Brockett v. Brockett, 2 How. (U. S.) 238; Wash- ington, etc., R. Co. v. Bradley, 7 Wall. (U. S.) 578; U. S. v. Tilden, 10 Ben. (U. S.) 12; Rutherford v. Penn- sylvania Mut. L. Ins. Co., i McCrary (U. S.) 128. The Objection may be Waived by the appellee, as where no motion to dis- miss the appeal on that ground is sea- sonably made. Frank v. Thomas, 35 111. App. 547. 3. Ford v. Albright, 31 Ohio St. 33. 4. Ford v. Albright, 31 Ohio St. 33. 6. Briant v. Hebert, 30 La. Ann. 1129; Union Bethel M. E. Church v. Sheriff, 33 La. Ann. 1461; Coyle v. Creevy, 34 La. Ann. 539; Vignie v. 974 Execution of Bond. APPEAL BONDS. Signature. Place of Signature. The place where the obligors sign is imma- terial if the character in which they sign, and an intention to au- thorize the instrument, are apparent. 1 On Approval. Sureties are not required to sign an appeal bond in the presence of the official designated by statute to approve it; 2 it is sufficient if the bond be presented to him properly signed. 3 But where he deems proper he may require the genuineness of the signatures to be proved. 4 Execution in Blank. An appeal bond may be executed in blank, 5 and the filling up of such blanks pursuant to an express or im- plied authority is an immaterial alteration, 6 and is binding on the sureties. 7 Record. It must appear by the rec- ord that the sureties signed the ap- peal bond ; the bill of exceptions is not sufficient. Hydraulic Press Brick Co. v. Zeppenfeld, 9 Mo. App. 595. 5. Smith v. Crocker, 5 Mass. 537; Scott v. Whipple, 5 Me. 337; Carlton v. Bailey, 7 N. H. 230; Cooke v. Craw- ford, i Tex. 9; Ex p. Fulton, 7 Cow. (N. Y.) 484; Parker v. Bradley, 2 Hill (N. Y.) 584; Wiley v. Moore, 17 S. & R. (Pa.) 438; Duncan v. Hodges, 4 Mc- Cord (S. Car.) 239, 15 Am. Dec. 734; Stone v. Wilson, 4 McCord (S. Car.) 203; Bank of Commonwealth v. Curry, 2 Dana (Ky.) 142. 6. Hunt v. Adams, 6 Mass. 522; Whitsett v. Womack, 8 Ala, 466; Iredell v. Barbee, 9 Ired. (N. Car.) 250. 7. Smith v. Crocker, 5 Mass. 537; Hunt v. Adams, 6 Mass. 522; Granite R. Co. v. Bacon, 15 Pick. (Mass.) 239; Humphreys v. Crane, 5 Cal. 173; Bar- rett v. Thorndike, i Me. 73; Hale v. Russ, i Me. 334; Kershow v. Cox, 3 Esp. 24. Estoppel. Where a surety signs a bond in blank he is estopped from setting up as a defense that a different bond was to be made than that filled out. Willis v. Rivers, 80 Ga. 556. Revocation. Sureties may revoke such authority before the execution of the bond. Williams v. Hart, 17 Ala. 107; Gibbs v. Frost, 4 Ala. 729. Ratification of Signature. Signature of the surety's name does not bind him, but he may ratify such authority expressly or impliedly. Winham v. Crutcher, 10 Lea (Tenn.) 610; Coles v. Anderson, 8 Humph. (Tenn.) 491. Implied Authority. Authority to fill out the blanks may be implied from circumstances as well as from words, on the signature of the bond by sure- ties. The request of the appellant Brady, 35 La. Ann. 560; Kendall v. Gleason, 152 Mass. 457; Danker v. No- wood, 119 Mass. 146; Ahrend v, Odi- orne, 125 Mass. 50; Guez v. Dupuis, 152 Mass. 454; Cooke v. Crawford, I Tex. 9; Baldridge v. Penland, 68 Tex. 441; Brown v. Jessup, 19 Oregon, 288; Dore v. Covey, 13 Cal. 502; Ex p. Fulton, 7 Cow. (N. Y.) 484; Scott v. Whipple, 5 Me. 336. 1. Baldridge v. Penland, 68 Tex. 441; Taylor v. State, 16 Tex. App. 515; Alexander -v. Boyle, 20 Tex. 560; Ful- shear v. Randon, 18 Tex. 275; Prince v. Thompson, 21 Tex. 480; Gage County v. Fulton, 16 Neb. 5. Signature Above Condition. Conse- quently the signature of the obligors need not be below the condition of the bond; a signature beneath the penalty clause validates the whole bond where the intention to authorize it is apparent. Gage County v. Fulton, 16 Neb. 6. Name Not Appearing in Bond. A per- son signing an instrument between other parties, where the law or the in- tention of the parties contemplates sureties to be given, will be presumed to have signed as such surety al- though his name does not appear in the body of the bond. Coyle v. Creevy, 34 La. Ann. 541. 2. State v. Clark, 24 Neb. 320. 3. State v. Clark, 24 Neb. 320. 4. State v. Clark, 24 Neb. 320. Signature Evidence of Appeal. In Mulanphy v. Murray, 12 Martin (La.) 429, it was held that the signature of the defendant at the foot of an appeal bond was evidence that he appealed. Signature by Mark. Signature of a surety by a simple cross-mark is good, and he is a competent witness to prove the signature to be his. State v. Byrd, 93 N. Car. 624. 975 Execution of Bond. APPEAL BONDS. Execution by Agent. 3. Execution by Agent. An attorney or agent may execute an appeal bond in the name of his principal. 1 But he must be au- thorized by a special power of attorney under seal ; 3 the general authority to prosecute the suit is not sufficient. 3 The power of attorney should properly be filed with the appeal bond, 4 but where the record does not show the contrary, it will be presumed that the agent's authority was shown on approval of the bond before the proper official. 5 to the appellate court. Dial v. Rector, 12 Tex. 99. 1. Wood -v. Wayne Circuit Judges, 48 Mich. 647; Schneck v. Hagar, 24 Minn. 339; Schofield v. Felt, 10 Colo. 146; Western Union Tel. Co. v. Gra- ham, i Colo. 183; Murray v. Peckham, 15 R. I. 297; Clark v. Courser, 29 N. H. 170; Ex p. Holbrook, 5 Cow. (N. Y.)35- By Corporations. Execution of an ap- peal bond for a corporation by an at- torney in fact appointed pursuant to a resolution of the executive commit- tee is sufficient. Western Union Tel. Co. -v. Graham, i Colo. 183. 2. Schofield v. Felt, 10 Colo. 146; Murray v. Peckham, 15 R. I. 297; An- drews v. Beane, 15 R. I. 451. In the case of other appeal securi- ties the attorney must be authorized by an instrument of equal legal rank with the security required. Schofield v. Felt, 10 Colo. 146. Where the security is executed with- out a proper authority from the prin- cipal, it is void against his objection. Andrews v. Beane, 15 R. I. 451. And a statute validating such a bond without the consent of the obligor is unconstitutional and void. Andrews v. Beane, 15 R. I. 451. Agent's Name. The appeal bond is ineffectual when given in the agent's own name. Savannah, etc., R. Co. v, Clark, 23 Fla. 308; or where signed "A. B., agent for C. D., appellant." It should be signed " C. D., appel- lant, by A. B., his attorney, or agent." Savannah, etc., R. Co. v. Clark, 23 Fla. 308. 3. Murray v. Peckham, 15 R. I. 297; Clark v. Courser, 29 N. H. 170; Ex p. Holbrook, 5 Cow. (N. Y.) 35. Recognizance on Appeal. In Massa- chusetts at attorney of record is held impliedly authorized to enter into a recognizance on appeal in the name of his client. Adams v. Robinson, 18 Mass. 461. 4. Schofield v. Felt, zoColo. 146. 5. Carmichael v. West Felician R. in the presence of the clerk held to imply authority in the clerk to fill up a blank. Gibbs v. Frost, 4 Ala. 729. Katification by Silence. Silence by a surety after knowledge that another may be injured by his failure to dis- affirm his signature may amount to his ratification. Winham v. Crutcher, 10 Lea (Tenn.) 610. Erasure. Erasure of surety's name on the appeal bond before the prin- cipal has signed invalidates the bond. Smith v. Boykin, 61 Miss. no. Affidavit. Where the affidavit of justification of a surety attached to an undertaking on appeal began thus : " , being duly sworn," but the surety's name was properly signed thereto, it was held sufficient. Brown v. Jessup, 19 Oregon 288. By Corporation. After a decree of forfeiture has been rendered against a corporation, it will be presumed that the statute contemplated the continued existence of such corporation for the purpose of executing an appeal bond on appeal against such decree. Texas Trunk R. Co. v. Jackson, 85 Tex. 605; Texas Trunk R. Co. v. State, 83 Tex. i; East Line, etc., R. Co. v. State, 75 Tex. 434. Recognizance on Appeal The pre- vailing rule is that an appellant need not personally enter into a recogni- zance on appeal, but that if it be en- tered into by his sureties or attorneys it will be sufficient. Vallance v. Saw- yer, 4 Me. 65; Goodtitle v. Bennington, Barnes 75; Lushington v. Doe, Barnes 78; Barnes v. Bulwar, Carth. 121; Keener. Deardon, 8 East 298; Dixon v. Dixon, 2 B. & P. 443; Adams v. Robinson, I Pick. (Mass.) 462. In Texas it is held in criminal cases that the appellant must personally enter into the recognizance on appeal. Chancy v. State, 23 Tex. 23; Terrill v. State, 29 Tex. 489. When Executed. An appeal bond ex- ecuted after the death of the appellee is void. Dial v. Rector, 12 Tex. 99. The facts may be tried upon affidavits 976 Delivery. APPEAL BONDS. Contents and Sufficiency. Subsequent Eatification. Where executed without authority it will be deemed ratified by a general appearance of the principal and a proceeding to hearing without objection. 1 X. DELIVERY. An appeal bond is not binding until delivered to the appellee, his attorney or agent ; a a delivery to the clerk of the court is not sufficient. 3 XL CONTENTS AND SUFFICIENCY 1. Amount. statutory Directions as to the amount in which the appeal bond shall be given are mandatory. 4 Where given in a larger amount than the statute re- Co., 2 How. (Miss.) 817; Robertson v. Johnson, 40 Miss. 500 ; Sullivan v. Lowder, n Me. 426; Illinois Cent. R. Co. v. Johnson, 40 111. 35; Union Gold Min. Co. v. Bank, 2 Colo. 227; Delisle v. Gaines, 4 Martin (La.) 671; Single- ton v. Smith, 4 La. 432; Poydras v. Patin, 5 La. 128; Jackson v. Harsly, 27 Fla. 205. General Presumption. On appeal, an appeal bond will be presumed to have been executed by the parties whose names are signed to it, and it can be attacked in the appellate court only for error manifest on its face. Car- michael v. West Feliciana R. Co., 2 How. (Miss.) 817. 1. Campbell v. Pope, 96 Mo. 468; Boorman v. Freeman, 12 111. 165; Bur- ton v. Collin, 3 Mo. 315. Or where ratified by a subsequent ratification under seal. Boorman v. Freeman, 12 111. 165. Execution in Name of Partnership. A bond signed by one party in the name of the partnership will bind all the partners consenting to the agree- ment. Kasson v. Brocker, 47 Wis. 79; Wilson v. Hunter, 14 Wis. 683; Water- man v. Button, 6 Wis. 265; Cady v. Shepherd, ii Pick. (Mass.) 405; Gram v. Seton, i Hall (N.Y.) 262. Presumption. And where such a bond is approved by the proper official it will, in the absence of proof to the contrary, be presumed to be so exe- cuted as to bind all the partners. Kasson v. Brocker, 47 Wis. 79. Where a proceeding is brought or a claim is presented in the name of a partnership without objection, an ap- peal bond may properly be given in the same name. Kasson v. Brocker, 47 Wis. 79. 2. Harris v. Register, 70 Md. 109; Covert v. Shirk, 58 Ind. 264; James v. Woods, 65 Miss. 528. 3. Harris v. Register, 70 Md. 109. As an appeal bond does not take ef- fect until delivery, its signature and sealing prior to the rendition of judg- ment appealed from do not affect its va- lidity where it is not delivered untiJ the judgment is rendered. James v. Woods, 65 Miss. 528; Chateaugay Ore, etc., Co v. Blake, 35 Fed. Rep. 804; Covert v. Shirk, 58 Ind. 264. What Constitutes Delivery. An ap- peal bond is delivered by filing the original with the clerk and serving a copy on the appellee. Where service is required by statute it is essential to perfect the appeal. Cushman v. Mar- tine, 13 How. Pr. (N. Y. Super. Ct.) 402; New York Cent. Ins. Co. v. Na- tional P. Ins. Co., 10 How. Pr. (N. Y. Ct. of App.)344; Maxwell z/. Wessels, 7 Wis. 103; Eaton v. Manitowoc Co., 42 Wis. 317. Proof of Delivery. The execution of an appeal bond, delivery of it to the clerk, and filing it among the papers with an affidavit, if required, is a suf- ficient proof of delivery. Dore v. Covey, 13 Cal. 502. Voluntary Bond. The delivery to and filing with the clerk of an appeal bond which does not comply with the stat- ute is not a good delivery as a volun- tary bond to the appellee without some act expressing the appellee's accept- ance and his ratification of the clerk as his agent to receive it. Reilly v. Atchinson (Arizona, 1893), 32 Pac. Rep. 262. Acknowledgment. Unless a statute, or a judge in the exercise of a discre- tionary power, so requires, an appeal bond need not be acknowledged and proved. Wilson v. Allen, 3 How. Pr. (N. Y. Supreme Ct.) 369. 4. Kaiser v. Dallas (Tex. Crim. App., 1893), 21 S. W. Rep. 767; Scott v. Mil- ton, 26 Fla. 52; Brown v. Keirns, 13 111. 296 ; Brennan v. Academy of Christian Brothers, 85 ill. 509; State v. McKinmore, 8 Oregon 207; Shannon v. Spencer, i Blackf. (Ind.) 120; Landa I Encyc. PI. & Pr. 62. 977 Contents and Sufficiency. APPEAL BONDS. Amount. quires the bond is valid, because the appellee obtains the protection contemplated by the statute. 1 Where given in a smaller amount v. Heermann, 85 Tex. i; Talbot v, Mor- ton, 5 Litt. (Ky.) 326; Wickliffe v. Clay, i Dana (Ky.) 589; Allen v. Sudduth, I J. j. Marsh. (Ky.) 15. A court has no power to dispense with any portion of the security re- quired by statute. Wice v. Commer- cial Ins. Co., 7 Daly (N. Y.) 258. Amount of Different Bonds Cannot be Cumulated. The amount of one appeal bond cannot be added to that of an- other bond such as an injunction bond given at the inception of the suit to make the required statutory amount. Grounx v. Abat, 7 La. 36; State v. King, 40 La. Ann. 841. Louisiana. Where it does not other- wise appear whether an'appeal is sus- pensive or devolutive, the amount of the bond determines. McKown v. Mathes, 19 La. 542; Grounx v. Abat, 7 La. 36. In Fixed Sum. A bond in a fixed sum where the statute requires it to be conditioned for payment of the judgment, damages, and costs is illegal unless these items are capable of exact computation and the amount of the bond agrees therewith. State v. Mc- Kinmore, 8 Oregon 207. Deposit of Money. Where statutes permit the deposit of a sum of money as a substitute for an appeal bond, the deposit of a sum less than the amount required in the bond is irregular, but may be amended. Lane v. Humbert (C. PL), 9 N. Y. Supp. 744. Certificate of Deposit. A certificate of deposit may be accepted by the clerk in place of cash where a deposit is permitted as security. Alt v. Cali- fornia Fig Syrup Co., 18 Nev. 423. The Cash Deposited in the inferior ap- pellate court must remain there until the final determination of the appeal. Parsons v. Travis, 2 Duer (N. Y.)65g; Mclntyre v. Strong, 48 N. Y. Super. Ct. 299. It is subject only to the decision of the appeal, and upon reversal of the judgment the fund is released from liens except those created by judgment or assignment. Jordan v. Volkening, 14 Hun (N. Y.) 118. Payment in Gold. A stipulation in the appeal bond that sureties will pay in gold coin is not a substantial varia- tion from the statute. State v. Cali- fornia Min. Co., 13 Nev. 203. Reduction of Amount. An appellant who deposits a less amount than the statute requires has no standing in the appellate court to move for a re- duction of the amount. Jesup v. Car- negie, 45 N. Y. Super. Ct. 310. He will not be permitted to with- draw the cash and to substitute an undertaking so as to subject the ap- pellee to the expense of investigating the sureties. Wiebold v. Rauer, 95 Cal. 418. In Suits Affecting Real Property. Ap- peal bonds given generally to cover costs and to perform the judgment do not embrace mesne profits in an action affecting real property unless the stat- ute expressly so provides. Opp v. Ten Eyck, 99 Ind. 345; Hays v. Wil- stach, 101 Ind. 100; Shenk v. Shaeffer, 8 Lane. L. Rev. (Pa.) 49. It is other- wise if it includes damages sustained by reason of the appeal. Cahall v. Citizens' Mut. Bldg. Assoc., 74 Ala. 539- Unsecured Judgment. Where the amount may be fixed by the judge or must be given to secure the amount of the decree, it must be for the entire amount of the unsecured judgment rendered. Richardson v. Richardson, 82 Mich. 307; Catlett v. Brodie, 9 Wheat. (U. S.) 553; Roberts v. Cooper, 19 How. (U. S.) 373; Providence Rub- ber Co. v. Goodyear, 6 Wall. (U. S.) 153 ; French v. Shoemaker, 12 Wall. (U. S.) 86; Jerome v. McCarter, 21 Wall. (U. S.) 17; Ex p. French, 100 U. S. i; Wayne County v. Kennicott, 103 U. S. 554; Kountze v. Omaha Hotel Co., 107 U. S. 381. In Michigan it is held that, where the judgment or decree is secured wholly or partially by a mortgage or by a fund in court, the amount of the appeal bond need in the one case be only for damages and costs, and in the other only for the unsecured amount plus damages and costs. Richardson v. Richardson, 82 Mich. 307; Michie v. Ellair, 60 Mich. 73; Kennedy v. Nims, 52 Mich. 153; Pros- ser v. Whitney, 46 Mich. 407; Daly v. Litchfield, n Mich. 497; Kephart v. Farmers', etc., Bank, 4 Mich. 602. 1. Larger Amount than Required. The general rule is that the appellee cannot object on the ground that the bond is for a larger amount than the 97 8 Contents and Sufficiency. APPEAL BONDS. Amount. he is entitled to a dismissal of the appeal unless the bond is prop- erly amended. 1 Amount of Judgment. Where the amount for which judgment was rendered determines the amount of the appeal bond, interest on the original claim up to the time of the rendition of the judgment below must be included as a part thereof. 3 Costs. And where the judgment to be rendered on appeal can in no event be for more than costs, a bond in that amount is ordinarily sufficient unless the statute fixes a sum named. 3 statute requires. Davis v. Curtis, 3 Martin, N. S. (La.) 142; Levesque v. Anderson, 6 Maran, N. S. (La.) 294; Dore v. Covey, 13 Cal. 509; Ives v. Finch, 22 Conn. 101; Clinton v. Phil- lips, 7 T. B. Mon. (Ky.) 119. In Ohio the contrary has been held. Coil v. Davis, Wright (Ohio) 164 ; Franklin Bank v. Bartlett, Wright (Ohio) 741; Pray v. Oliver, 5 Ohio 326. 1. Amount Less than Required. Smith v. Vanhille, 10 La. 252; Duperron v. Van Wickle, I Rob. (La.) 324 ; Brown v. Keirns, 13 111. 296 ; Brennan v. Academy of Christian Brothers, 85 111. 509; Shannon v. Spencer, I Blackf. (Ind.) 120. Paying Money into Court. The ap- pellant cannot remedy his bond by the voluntary deposit with the clerk of the amount required to complete the bond. Smith v. Vanhille, 10 La. 252. Description of Amount. A bond de- scribing a judgment as for principal, interest, and "costs" does not vary substantially from a judgment for principal, interest, and "attorney's fees," where the sums are identical. Landa v. Heermann, 85 Tex. i. 2. Paland z/TChicago, etc., R. Co., 42 La. Ann. 293; Ross v. Pargoud, 2 La. 85; Brown v. Brown, 9 La. Ann. 310; Jorda v. Judge, 29 La. Ann. 776. But not interest accruing since the rendition of the judgment. Paland v. Chicago, etc., R. Co., 42 La. Ann. 290. Costs. And in Louisiana costs as taxed are not included in the " amount of judgment." Ross v. Pargoud, 2 La. 86. A bond in double the amount of costs is sufficient to comply with the statute requiring it to be in double the amount of judgment and costs, where the judgment rendered is for costs. Ross v. Williams, 78 Tex. 371; Owens v. Levy, I Tex. App. Civ. Cas. 409. Damages. Where a percentage is added to the judgment as " damages," the appeal bond must provide for the judgment plus the "damages" so given. Roman v. Peters, i Rob. (La.) 522. The word " damages " in an appeal bond or undertaking binding the ap- pellant to pay all costs and damages which may be awarded against him on appeal does p.c'. include damages already adjudged or which may there- after be recovered against the appel- lant in the court .from which the ap- peal is taken. Post v. Doremus, 60 N. Y. 371. 3. Chenault v. Chenault, 5 Sneed (Tenn.) 252; Watkins v. Clifton Hill Land Co., 91 TfSnn. 683; Gibson v. Widener, 85 Tenn. 16; Younger v. Younger, 90 Tenn. 25; Kinsey v. Stan- ton, 6 Baxt. (Tenfl.) 92; Staub v. Will- iams, I Lea (Tenn.) 123; Rogers v. New- man, 5 Lea (Tenn.) 255; Moore v. Alston (Tex., 1890), 158. W. Rep. 47; Ross v. Williams, 78 Tex. 371; State v. Lazarus, 36 La. Ann. 189; State v. Rightor, 44 La. Ann. 564; Hart v. Lazarus, 34 La. Ann. 1210; State v. King, 40 La. Ann. 841; State v. Judge, 39 La. Ann. 1042; Heath v. Vaught, 16 La. 515; Blanchin v. Steamer Fashion, 10 La. Ann. 345; Edwards' Succession, 34 La. Ann. 216; Pasley v. McConnell, 38 La. Ann. 470; State v. Judge, 22 La. Ann. 178; State v. Judge, 27 La. Ann. 685; States. Judge, 30 La. Ann. 314; Goh's Succession, 37 La. Ann. 428. What Costs Included. A bond re- quired by statute to cover costs generally includes costs of the court from which the appeal is taken, as well as those awarded on appeal. Prosser v. Whitney, 46 Mich. 405; Ray v. Shehee, 34 La. Ann. 1106; unless ex- pressly limited to those arising in the appellate court. Michie v. Ellair, 60 Mich. 73; Robinson v. Masterson, 136 Mass. 560. In Indiana costs are held to include those only which are incurred by the 979 Contents and Sufficiency. APPEAL BONDS. Amount. When Discretionary. Where the statute requires a bond, but does not define the amount in which it shall be given or otherwise de- termine the liability of the obligors, it is within the discretion of the trial court to fix the amount. 1 The discretion so exercised is appellee and for which he is liable. Goodwin v. Smith, 68 Ind. 301. In such cases an appeal bond is suf- ficient where the penalty is large enough to cover the appellate costs; but the appellate court will take judi- cial notice of their amount, and if the bond is insufficient the appeal will be dismissed on motion. Walker v. Hunter, 34 Ala. 204; Satterwhite v. State, 28 Ala. 65; Williams v. Mc- Conico, 27 Ala. 572; Barnett v. State, 34 Ala. 260. In Texas it is held that, where a bond must be given for the amount of the judgment and "costs," the costs in- clude those only which have accrued up to the time the appeal was taken. Costs subsequently arising should not be included. Drum v. Ft. Worth, 25 Tex. App. 664. The agreement in an appeal bond to satisfy and perform a judgment on af- firmance or dismissal embraces costs as well as the debt and interest. Stephens v. Miller, 80 Ky. 47. Attorney's Fees. Costs do not in- clude attorney's fees unless expressly so required by statute or so stated in the bond. Noll v. Smith, 68 Ind. 188. Damages on Injunction. An appeal bond, given on appeal from a decision granting or dissolving an injunction, conditioned to pay all damages caused by suing out the injunction does not cover damages caused by the continu- ance of the injunction by the appeal. Mix v. Singleton, 86 111. 194. Several Appeals. Where an under- taking or appeal bond covers several appeals, its amount must be propor- tionately increased for each appeal. People v. Center, 9 Pac. Coast Law J. (Cal.) 764; Webb v. Trescony, 76 Cal. 621. California. Where, as in California, one obligation is sufficient to cover an appeal from a judgment and an order awarding a new trial in the same case, the amount required on a single appeal is sufficient. See VIII. ON SEPARATE APPEALS, supra. One Bond Sufficient. Where an appeal bond for costs only is required in each case, one bond for costs may cover an appeal from a final and an interlocu- tory judgment in the same case. Peo- ple's Brewing Co. v. Boebinger, 40 La. Ann. 277. Cumulative Bond. On appeal from an intermediate appellate tribunal to the Supreme Court the appeal bond need only cover costs, provided the obliga- tion of the bond given in the original appeal holds good. McCall v. Moss, 100 111. 461; Ennor v. Galena, etc., R. Co., 104 111. 103. 1. Koch's Estate, 4 Rawle (Pa.) 268; Com. v. Judges, 10 Pa. St. 37; Chew's Appeal, 9 W. & S. (Pa.) 151. Compliance Required. Strict compli- ance with the order fixing the amount is essential to enable the appellant to prosecute an appeal against the objec- tion of the appellee, otherwise the ap- peal may be dismissed on his motion. Hawkins v. Bell, 6 La. Ann. 561; Glaze v. Russell, 5 Martin, N. S. (La.) 237; Smith v. Vanhille, 10 La. 252; Rightor v. Phelps, i Rob. (La.) 325; Slater v. Commercial, etc., Bank, 12 Rob. (La.) 187; Ross v. Pargoud, 2 La. 86; Beas- ley v. Allen, 9 Rob. (La.) 39; Emerson v. Fox, 3 La. 181 ; Lowenstein v. Fudicker, 43 La. Ann. 886; State v. Meacham, 6 Ohio Cir. Ct. Rep. 31; Com. v. Wistar, 142 Pa. St. 373. "Court," Not Judge. Where the statute designates the court to fix the amount of the bond or the time of filing, it cannot be fixed by the judge. Gruner v. Moore, 6 Colo. 529; Wolfley v. Leb- anon Min. Co., 3 Colo. 64. By Clerk of Court. The clerk of the court has no power to fix the penalty unless the statute expressly author- izes him. Ennis's Estate, 2 Del. (Pa.) 523- No Motion Required. A motion by either party is not essential to the ac- tion of the court in fixing the amount; the court must determine it if none is made. Hubble v. Renick, i Ohio St. 171. Prior Execution. Where the statute requires the amount of an undertaking to be fixed by a justice it is not in- validated by an execution prior to fixa- tion of the sum. Scherer v. Hopkins (C. PL), 16 N. Y. Supp. 863. Louisiana. In Louisiana, when the prayer and order are for a suspensive appeal, and the amount of the bond fur- 980 Contents and Sufficiency. APPEAL BONDS. Description of Judgment. not an arbitrary but a judicial discretion, 1 and the amount fixed must have reasonable regard to the peculiar circumstances of each case. The action of the court or judge is reviewable. 2 Effect of Giving New Bond. Where a new appeal bond is required to be given by the court in a larger amount than the orig- inal appeal bond, the liability on the original bond is discharged thereby. 3 The effect of the new bond is retroactive, and em- braces all acts named in the bond from the time of taking the appeal. 4 2. Description of Judgment. An appeal bond must sufficiently describe the judgment appealed from to identify it with cer- tainty. 5 Where it entirely fails to specify it or does not contain nished in compliance with the order is insufficient to sustain it, or if the bond is not filed t within the time required to perfect such appeal, but is required within the year given for a devolutive appeal, the appeal will be sustained as the latter appeal. Erode v. Fireman's Ins. Co., 8 Rob. (La.) 38. Order. The amount must be stated in the order granting the appeal, or the order is defective. Wolfley v. Leba- non Min. Co., 3 Colo. 64; Duperron v. Van Wickle, i Rob. (La.) 324; Surget v. Stanton, 10 La. Ann. 318; Rachel v. Rachel, n La. Ann. 687. The court may be compelled to fix the amount by mandamus when it fails or declines to act. State v. Judge, 41 La. Ann. 1140. In Louisiana a mandamus will not is- sue for that purpose after the time for taking a suspensive appeal has elapsed. State v. Judge, 41 La. Ann. 1140. Time to Act. The court cannot change or amend the order after the record of the case has been transferred to the appellate court, as the jurisdic- tion over it is lost thereby. Holbrook v. Holbrook, 32 La. Ann. 13; Chew's Appeal, gW. & S. (Pa.) 151; Com. v. Wistar, 142 Pa. St. 373. 1. Hart v. Lazarus, 34 La. Ann. 1210. 2. Hart v. Lazarus, 34 La. Ann. 1210; Demarest v. Beirne, 36 La. Ann. 751; Beard v. Russ, 32 La. Ann. 304; Lucas -v. Fallen, 40 Mo. App. 551; Richardson v. Richardson, 82 Mich. 307; Catlett v. Brodie.gWheat. (U. S.) 554; Roberts v. Cooper, 19 How. (U.S.) 373; Providence Rubber Co. v. Good- year, 6 Wall. (U. S.) 153; French v. Shoemaker, 12 Wall. (U.S.) 86; Jerome v. McCarter, 21 Wall. (U. S.) 17; Ex p. French, 100 U. S. i; Wayne County v. Kennicott, 103 U. S. 554; Kountze v. Omaha Hotel Co., 107 U. S. 381; Scott v. Milton, 26 Fla. 52. The trial court or judge should con- sider the fact that the judgment is not a money judgment, or that the fund in dispute is in the custody of the court, in fixing the amount. State v. Dillon, 98 Mo. 90. And where the bond given affords ample security, a new appeal bond for an additional amount cannot be required. Reed v. Leffingwell, 30 Mo. 543; State v. Lavalley, 9 Mo. 834. Security Less than Amount of Decision. Fixing the appeal security at a less sum than the whole amount of the de- cision appealed from will generally constitute an abuse of discretion. Demarest v. Beirne, 36 La. Ann. 751; Catlett v. Brodie, 9 Wheat. (U. S.) 554; Ex p. French, 100 U. S. i ; Kountze v. Omaha Hotel Co., 107 U. S. 381; Scott v. Milton, 26 Fla. 52. The Order of the Court is Amendable, and further security may be required. Demarest v. Beirne, 36 La. Ann. 751. Contra, Brasch v. Dick, 14 Ohio St. 557- 3. Poppers v. International Bank, IO 111. App. 531, affirmed 105 111. 491. 4. International Bank v. Poppers, 105 111. 491. 5. Texas. Williams v. Sims (Tex. App., 1890) 16 S. W. Rep. 786; Warren v. Marberry, 85 Tex. 193; Edwards v. Allen (Tex. App., 1891), 19 S. W. Rep. 1074; Herndon v. Bremond, 17 Tex. 334; Christian v. Crawford, 60 Tex. 45; O'Hara's Estate, 60 Tex. 179; South- ern Pac. R. Co. -v. Stanley, 76 Tex. 419; Dutton v. Norton, i Tex. App. (Civ. Cas.) 358; Nelson v. Baird, i Tex. App. (Civ. Cas.) 1236; Mills v. Hackett, i Tex. App. (Civ. Cas.) 846; Parsons v. Crawford, 2 Tex. App. (Civ. Cas.) 669; Austin v. McMahan; 2 Tex. App. (Civ. Cas.) 429; Laird 981 Contents and Sufficiency. APPEAL BONDS. Description of Judgment. terms of identification sufficient to correct misrecitals of dates, etc., it is void. 1 On appeal from an amended judgment nunc pro tune v. Frieberg, 2 Tex. App. (Civ. Cas.) in; Moses v. Clements, 3 Tex. App. (Civ. Cas.) 171.. Louisiana. Walker's Succession, 32 La. Ann. 525; People's Brewing Co. v. Boebinger, 40 La. Ann. 277. Kansas. Chicago, etc., R. Co. v. Brunson, 43 Kan. 371; Shuster v. Overturf, 42 Kan. 668; Kansas City, etc., R. Co. v. Hurst, 42 Kan. 462. New York. Dunseith v. Linke, lo Daly (N. Y.) 363; Dinkel v. Wehle, 13 Abb. N. Cas. (N. Y. C. PI.) 478; Mc- Elroy v. Mumford, 128 N. Y. 303. North Carolina. Bowen v. Fox, 98 N. Car. 396; Lackey v. Pearson, 101 N. Car. 657. Florida. McMichael v. Eckman, 26 Fla. 43; Savannah, etc., R. Co. v. Clark, 23 Fla. 308. Arizona. Sutherland v. Putnam (Ar- izona, 1890), 24 Pac. Rep. 320. Massachusetts. Putnam v. Boyer, 140 Mass. 235. Wisconsin. Johnston v. King, 83 Wis. 8. Ohio. Coil v. Davis, Wright (Ohio) 164. Delaware. Miller v. Holding, 5 Del. 494. Statement of Amount. The amount of the judgment appealed from need not be stated in the binding part of the undertaking if elsewhere stated in the appeal bond. Dunseith v. Linke, 10 Daly (N. Y.) 363. Sufficient Description. An appeal bond correctly describes the judgment appealed from when it states the style and number of the suit, the court wherein rendered, the date of its ren- dition, the amount for which it was rendered, and against whom it was rendered. Williams v. Sims (Tex. App., 1890), 16 S. W. Rep. 786; John- ston v. King, 83 Wis. 8. Omission of Kecital. But the omis- sion of any recital which does not destroy the identity of the judgment is not fatal to the validity of the bond, because its omission creates no vari- ance or repugnance. Satterwhite v. State, 28 Ala. 65; Meredith v. Richard- son, 10 Ala. 828; People v. Orleans, 2 Wend. (N. Y.) 292. Thus, while the date of a judgment should be correctly described in the appeal bond (Shuster v. Overturf, 42 Kan. 670; Dinkel v. Wehle 13 Abb. N. Cas. (N. Y. C. PI.) 478; Lemon v. Stephenson, 40 111. 45; Dietrich v. Rumsey, 40 111. 50), yet the omission or misstatement of the date is not fatal to the validity where the judgment may be identified with certainty from the remaining de- scription of the bond, Warren v. Marberry, 85 Tex. 193; Southern Pac. R. Co. v. Stanley, 76 Tex. 419; Ed- wards v. Allen (Tex. App., 1891), 17 S. W. Rep. 1074; Forbes v. Porter, 23 Fla. 47; Dinkel v. Wehle, 13 Abb. N. Cas. (N. Y. C. PI.) 478; Swasey v. Adair, 83 Cal. 136; or that the amount for which the judgment is rendered is omitted, or a portion of the parties thereto omitted in the description, Witten v. Caspary (Tex., 1890), 15 S. W. Rep. 47; Warren v. Marberry, 85 Tex. 193; Christian v. Crawford, 60 Tex. 45; Herndon v. Bremond, 17 Tex. 334. In other cases it is held that a description in the appeal bond of the judgment as rendered against a por- tion only of the appellees is fatally defective. Pittman v. Myrick, 16 Fla. 403; Satterwhite v. State, 28 Ala. 65; Dumas v. Hunter, 28 Ala. 688; Mc- Garrah v. Burney, 4 Tex. 287; Willen- berg v. Murphy, 40 111. '46. Where a judgment described in the appeal bond as for 2184.40 was actually rendered for $24,000, the appeal was dismissed. Lockhart v. Lytle, 36 Tex. 188. A failure to recite in the judgment the days when respective sums mentioned in it are required to be paid may be supplied by reference to the record. Satterwhite v. State, 28 Ala. 65; Thur- man v. Blankenship, etc., Co., 79 Tex. 171. 1. Williams v. State, 26 Ala. 85; Dumas v. Hunter, 28 Ala. 688; Bur- dine v. Mustin, 33 Ala. 634; O'Hara's Estate, 60 Tex. 179. Description of Offense in Criminal Ap- peal. Where statutes require the re- cognizance in a criminal appeal to state the offense of which the prisoner was convicted, it must set out all the essen- tial elements of the crime unless it is an offense eo nomine, when it will be sufficient to recite it by that name. Johnson v. State (Tex. Crim. App., 1893), 21 S. W. Rep. 371; Morgan v. State (Tex. Crim. App., 1893), 21 S. W. Rep. 260; Flemming v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 1038; Shackelford v. State (Tex. Crim. App.. 982 Contents and Sufficiency. APPEAL BONDS. Condition of Bond. the bond should recite the amended judgment. 1 Undertaking. The judgment must be recited in full in an under- taking on appeal so that it may appear that sureties have justi- fied in the correct amount. 2 3. Condition of Bond. The condition of the appeal bond must be as broad as the statute, and must include all the essential stip- ulations required by it. 3 Where a stipulation in the bond 1893), 22 S. W. Rep. 26; Mullinix v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 407; Reed v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 969; Parker v. State (Tex Crim. App., 1892), 2oS.W. Rep. 707; Garza v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 139; Dag- gett v. State (Tex. Crim. App., 1893), 21 S. W. Rep. 360; Donahoe v. State (Tex. Crim. App., 1893), 21 S. W. Rep. 372; Alderete v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 17; Koritz v. State, 27 Tex. App. 53; Witten v. Caspary (Tex., 1890), 15 S. W. Rep. 47; McLaren v. State, 3 Tex. App. 680; Killingsworth v. State, 7 Tex. App. 28; Waterman v. State, 8 Tex. App. 671; Morris v. State, 4 Tex. App. 554. Jurisdictional. Description of the essential elements of the offense is, where required by statute, Jurisdic- tional. Johnson v. State (Tex. Crim. App., 1893), 21 S. W. Rep. 371. Description of Court. Where the stat- ute requires compliance with a form prescribed it must be. substantially followed; and a misnomer of the court to which the appeal is taken, or failure to name it entirely, is a fatal defect. Cummings v. State, 31 Tex. Crim. App. 406; Neubauer v. State, 31 Tex. Crim. App. 513; Kaiser z/. Dallas (Tex. Crim. App., 1893), 2I S. W. Rep. 767; Garza v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 139; Douglass v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 43. 1. Dumas v. Hunter, 30 Ala. 188. 2. Fay v. Lynch, 5 Month. L. Bull. (N. Y.) 57- 3. Texas. Robinson v. Brinson, 20 Tex. 438; Little v. State, 26 Tex. no; Stroud v. State, 33 Tex. 650; Pridgen v. Walker, 37 Tex. 410; Figures v. Dunklin, 68 Tex. 644; Hicks v. Oli- ver, 71 Tex. 776; Munzesheimer v. Wickham, 74 Tex. 638; Southern Pac. R. Co. v. Stanley, 76 Tex. 418. Tennessee. Polk v. Plummer, 2 Humph. (Tenn.) 500; Mattock v. Bank, 7 Yerg. (Tenn.) 95; Alberton v. Mc- Gee, 7 Yerg. (Tenn.) 106; Jones v. Parsons, 2 Yerg. (Tenn.) 321. Louisiana. State v. Kink, 40 La. Ann. 841; Russ v. Creditors, 45 La. Ann. 442. Other States. Ballard v. Noaks, i Ark. 133; Stephens v. People, 13 111. 131; Bowie v. Hagan, 5 How. (Miss.) 13; Strange v. Ellis, i Mo. 412; Lang- ley v. Warner, i N. Y. 606. The liability of the principal and sureties on the appeal bond must be made dependent on all the contingen- cies named in the statute. An omis- sion of any one is a fatal defect on ob- jection. Calhoun's Succession, 35 La. Ann. 363. Obligation Must Be Defined. So a bond which does not define the ob- ligation, but merely states that prin- cipal and sureties are " firmly bound," is void. Munzesheimer v. Wickham, 74 Tex. 638. Substantial Compliance. Where the condition substantially complies with the statute the bond is valid although its language varies therefrom. Robin- son v. Brinson, 20 Tex. 438; Southern Pac. R. Co. v. Stanley, 76 Tex. 418. Thus the term " award " used in the condition of a bond is a sufficient sub- stitute for the word " judgment." Richards v. Griffin, 5 Ala. 195. Condition. Where the statute re- quires literal compliance with a pre- scribed form, a bond conditioned more onerously than the statute requires is void. Scarborough v. State (Tex. Crim. App., 1892), 20 S. W. Rep. 584. Or where the condition varies in any essential particular from the statutory requirement. Drinkwine v. Eau Claire, 83 Wis. 428. Illustrations of Sufficiency. An ap- peal bond required by statute to se- cure damages and costs must be con- ditioned to pay both or it is invalid as a statutory bond. Langley v . Warner, i N. Y. 606. Where the condition of an appeal bond was simply to "prosecute the 983 Contents and Sufficiency. APPEAL BONDS. Condition of Bond. required by the statute governing the subject is omitted, the appeal may be dismissed for that reason on motion of the appeal," and not to "prosecute the ap- peal with effect," it was held void. Jones v. Parsons, 2 Yerg. (Tenn.) 321; Albertson v. M'Gee, 7 Yerg. (Tenn.) 106; Matlock v. Bank, 7 Yerg. (Tenn.) 95; Polk v. Plummer, 2 Humph. (Tenn.) 500; Figures v. Dunklin, 68 Tex. 645. A bond conditioned to pay the "judgment" rendered against the appellant is void pro tanto on appeal from an order awarding a new trial, since no amount will be awarded on the decision thereon, and the prece- dent event upon which the appellant's liability depends can never occur. Post v. Dorernus, 60 N. Y. 371. A stipulation " to pay such sum of money as shall be finally adjudged against the said defendants " is not a sufficient compliance with a statute re- quiring the obligors to bind them- selves to pay the debt or damages and costs in case the judgment shall be af- firmed on appeal. Ballard -v. Noaks, I Ark. 133. A condition that the appellant "will pay all damages and costs which may be awarded against defendants on ap- peal," omitting the words " or on a dismissal thereof," is defective, but amendable. Woodman v. Calkins, 12 Mont. 456, In New York such a bond has been construed to include dismis- sal as well as affirmance. Staples -v. Gokey, 34 Hun (N. Y.) 289. A condition of an appeal bond bind- ing the obligors to pay costs only in case of affirmance of the judgment is not a compliance with the statute re- quiring it to secure the costs on appeal, since such a bond cannot be enforced for costs awarded on dismissal. Hin- son v. Preslor, 27 Ala. 643. A bond conditioned to " prosecute an appeal to effect or pay " is a suffi- cient compliance with the statute re- quiring it to be conditioned " to prose- cute an appeal to effect and pay." Robinson v. Brinson, 20 Tex. 438; Southern Pac. R. Co. v. Stanley, 76 Tex. 418. Construction of Conditions. Where the word damages is used generally in the condition of an appeal bond condi- tioned to pay " intervening damages and costs " it includes no additional item except interest. Bartholomew v. Chapin, 10 Met. (Mass.) i; Swan v. Picquet, 4 Pick. (Mass.) 465 ; Burgess v. Doble, 149 Mass. 256; Kountzez/. Omaha Hotel Co., 107 U. S. 378; McWilliams v. Morgan, 70 111. 62; Mason v. Smith, n Lea (Tenn.) 67; Blair -v. Kilpatrick, 40 Ind. 312. It does not include rent or other items of damage to real estate incurred pending the appeal deciding its ownership. Kountze v. Omaha Hotel Co., 107 U. S. 378. In Alabama it is held that a bond conditioned for the payment of " all costs and such damages as appellee may sustain by reason of the appeal " includes value and use of the real es- tate pending an appeal from a judg- ment affecting the possession thereto. Cahall v. Citizens' Mut. Ben. Assoc., 74 Ala. 539. And where damages for rents and profits are recovered in the suit in the trial court, they may be recovered in an action on a bond con- ditioned for the payment of the judg- ment and damages. Burgess v. Do- ble, 149 Mass. 256; Kountze v. Omaha Hotel Co., 107 U. S. 378. In Davis v. Alden, 2 Gray (Mass.) 309, it was held that a recognizance conditioned by law for the payment of " all damages and loss which the plain- tiff may sustain by reason of the with- holding of the possession of the de- manded premises, and by reason of any injury done to the premises dur- ing such withholding," made the ap- pellant liable for all waste, actual and permissive, and for all losses which may have happened from negligence and careless management on the part of the tenant. When Costs Only Recoverable. A con- dition to prosecute the appeal with effect and pay all costs that may be ad- judged against the appellant will sus- tain only a recovery of costs upon dis- missal of the appeal. Com. v. Wistar, 142 Pa. St. 373. A bond conditioned to secure "all costs " means the costs of the appellee. Morris v. Morris, 92 N. Car. 142. The omission of the words " pay to " in the obligation of an appeal bond held not to invalidate it. Billings v. Roadhouse, 5 Cal. 71. Prosecution with Effect. The words "prosecution with effect " in the con- dition of an appeal bond mean " with success." Trent v. Rhomberg, 66 Tex. 254; Robinson v. Brinson, 20 Tex. 439; 984 Time for Filing Swurity. APPEAL BONDS. Generally. appellee; 1 or he may waive the defect and enforce the bond as valid. 2 No court 01 judge can alter the conditions named in the statute ; 3 but where a more onerous condition than the statute demands is embraced in the bond it will be rejected as surplusage, and the bond held valid. 4 XII. TIME FOB FILING SECUBITY 1. Generally. The appeal security must be filed within the time designated by the statute. 5 Bailey v. Goodjohn, 64 Tex. 546; Per- reau v. Bevan, 5 B. & C. 284, 12 E. C. L. 230; Legate v. Marr, 8 Blackf. (Ind.) 404; Karthaus v. Owings, 6 Har. & J. (Md.) 134; Champomier v. Washing- ton, 2 La. Ann. 1013; Gould v. Warner, 3 Wend. (N. Y.) 54; Marott v. Young, 33 N. J. L. 336. Contra. Hobart v. Milliard, n Pick. (Mass.) 143, is to the effect that filing a transcript in the appellate tribunal is a sufficient compliance with such a condition. An appeal bond conditioned only for "due prosecution of appeal" binds sureties to pay appellee damages and costs. Evans v. Hardwick, i J. J. Marsh (Ky.) 436; Moore v. Gorin, 2 Litt. (Ky.) 186. Reference to Amount. Where an un- dertaking in its recitals states the amount of the judgment appealed from, and in its binding part distinctly refers to such judgment, its legal effect is the same as though the amount of the judgment had been inserted in the binding part of the undertaking. Dun- seith v. Linke, 10 Daly (N. Y.) 365. Intention of Parties. Parties will be Mabry v. Tarver, i Humph. (Tenn.) 97; Morse z/.. Hodson, 5 Mass. 314; Bowie v. Hagan, 5 How. (Miss.) 13; unless the statute expressly provides that a variation shall avoid the bond, Morse v. Hodson, 5 Mass. 314. See Common-Law Bond, XIII, 6, infra. 3. State v. King, 40 La. Ann. 841; French v. Snell, 37 Me. 100; Owen v. Daniels, 21 Me. 180 ; Harrington v. Brown, 7 Pick. (Mass.) 232. 4. Where the bond is otherwise in corfformity to the statute. Landa v. Heermann, 85 Tex. i; Janes v. Lang- ham, 29 Tex. 413; Tomlin v. Green, 39 111. 225. But see Scarborough v. State (Tex. Crim. App., 1892), 20 S. W. Rep. 584, where it was held that if the statute requires literal compliance with a prescribed form, a bond con- ditioned more onerously than the stat- ute requires is void. So the addition of the requirement that appellant " shall pay for use and detention of the property" involved to the statutory requirement of " costs and damages " was held void. Kountze v. Omaha Hotel Co., 107 U. S. 378. 5. California. Wood v. Pendola, 77 presumed to have intended every pro- 'Cal. 82; Coker v. Colusa County, 58 vision of the condition to be valid. Sheffler v. Nadelhoffer,"i33 111. 555. The inclusion of words implied by law does not affect its validity. Swann v. Home, 54 Miss. 337. Judgment. The condition of an ap- peal bond to pay the judgment ren- dered means the final judgment. Roth- gerber v. Wonderly, 66 111. 390. Defenses. It is no defense in a suit on a bond for breach of one condition that the other has been performed. Trent v. Rhomberg, 66 Tex. 254; Ho- bart v. Hilliard, n Pick. (Mass.) 143. 1. Rawle -v. Feltus, 33 La. Ann. 421; Calhoun's Succession, 35 La. Ann. 363. 2. Young -v. Mason, 8 111. 55; Trip- ler v. Gray, 7 Yerg. (Tenn.) 16; Nichol v. McCombs, 2 Yerg. (Tenn.) 83; Smith v. Erwin, 5 Yerg. (Tenn.) 296; Ghol- son v. Brown, 4 Yerg. (Tenn.) 496 ; Banks v. Brown, 4 Yerg. (Tenn.) 200; Cal. 178; Wood -v. Monterey County, 67 Cal. 115; Berniaud v. Beecher, 74 Cal. 617; Home, etc., Assoc. v. Wilkins, 71 Cal. 626; Schurtz v. Romer, 81 Cal. 246; McKeen v. Naughton, 88 Cal. 462; Pacific Paving Co. v. Bolton, 89 Cal. 154; McCracken v. Los Angeles County, 86 Cal. 74; Shaw v. Randall, 15 Cal. 386; Elliotts. Chapman, 15 Cal. 383; Lowell v. Lowell, 55 Cal. 318; Reed v. Kimball, 52 Cal. 325. Alabama. Carey v. McDougald, 25 Ala. 109; Moore v. McGuire, 26 Ala. 461; Hinson v. Preslor, 27 Ala. 643; Mayo v. King, 28 Ala. 690; Thompson v. Lea, 28 Ala. 459; King v. McCann, 25 Ala. 471; Mayo v. King, 28 Ala. 690. North Carolina. Bowen v. Fox, 99 N. Car. 129; Graves v. Hines, 106 N. Car. 323; Sever v. McLaughlin, 82 N. Car. 332; Hutchinson _v. Rumfelt, 82 985 Time for Filing Security. APPEAL BONDS. Generally, Where the statute names no time it maybe fixed by order of the N. Car. 426; Boyden v. Williams, 92 N. Car. 546; McCanless v. Reynolds, 90 N. Car. 648; Applewhite v. Fort, 85 N. Car. 596. Missouri. Moore v. Damon, 4 Mo. App. in; Green v. Castello, 35 Mo. App. 127; Corbin v. Laswell, 48 Mo. App. 626. Oregon. Strang v. Keith, i Oregon 312; Canyon Road Co. v. Laurence, 3 Oregon 519; Northern Pac. Terminal Co. -v. Lowenberg, II Oregon 286; Cross v. Chichester, 4 Oregon 114; Odell v. Gotfrey, 13 Oregon 466. United States. Durousseau v. U. S., 6 Cranch (U. S.) 312; Marbury v. Madi- son, I Cranch (U. S.) 175; Stafford v. Union Bank, 16 How. (U. S.) 135; Silsby v. Foote, 20 How. (U. S.) 290. Florida. Gordon v. Camp, 2 Fla. 23; Curry v. Marvin, 2 Fla. 411; Union Bank v. McBride, 2 Fla. 7. Michigan. Weed v. Lyon, Walker (Mich.) 77; Moore v. Ellis, 18 Mich. 77; Covell v. Mosely, 15 Mich. 514. Louisiana. Reed v. Creditors, 37 La. Ann. 907; Wood v. Wall, 5 La. Ann. 179. Mississippi. Hardaway v. Biles, I Smed. & M. (Miss.) 657; Boone -v. Poin- dexter, 12 Smed &. M. (Miss.) 640. Ohio. Burke v. Jackson, 22 Ohio St. 268; Mygate v. Ingham, Wright (Ohio) 176. Tennessee. Wooten z/. Daniel, 16 Lea (Tenn.) 156; Willson -v. Edwards, 5 Coldw. (Tenn.) 238. Indiana. Ex p. Sweeney, 131 Ind. Si; State v. U. S., 8 Blackf. (Ind.) 252. Colorado. Law v. Nelson, 14 Colo. 409. Idaho. Brown v. Ilanley, 2 Idaho 950. Kentuiky. Clinton v. Phillipi, 7 B. Mon. (Ky.) 118. Texas. McLana v. Russell, 29 Tex. 127. Iowa. Steamboat "Lake of the Woods " v. Shaw, 2 Greene (Iowa) 91. Illinois. Young v. Mason, 8 111. 55; Kenny v. Jones, 37 111. App. 615; Et- telson v. Jacobs, 40 111. App. 427. Massachusetts. Com. v. Dunham, 22 Pick. (Mass.) n. Utah. Cook v. Oregon, etc., R. Co., 7 Utah 416. Arizona. Sutherland v. Putnam (Arizona, 1891), 24 Pac. Rep. 320. Nebraska. McKinley v. Chapman, 37 Neb. 378. New York. Langley v. Warner, I N. Y. 606; Skidmore v. Davies. 10 Paige (N. Y.) 3 i6. Virginia. Yarborough v. Deshazo, 7 Gratt. (Va.) 374. Maine. French v. Snell, 37 Me. 100. Wisconsin. Thompson -v. Thomp- son. 24 Wis, 515. Montana. Pardeez/. Murray, 4Mont. 35- Eecognizance. So a recognizance on appeal must be taken and filed within the time named in the statute, or the appeal cannot be sustained. Knight v. Bean, 18 Me. 219. Substituted Security. Where money may be deposited in lieu of an under- taking the deposit must be made within the time for filing the undertaking. Stratton v. Graham, 68 Cal. 168. Amendment. An appeal bond cannot be amended after it has been filed, without the leave of the court. Dugas v. Truxillo, 14 La. Ann. 201. See AMENDMENT, XIII, infra. Construction of Statute. Where by statute the appeal is avoided for any purpose unless the appeal bond is filed or waived within the time defined, the court acquires no jurisdiction to hear the appeal or amend the bond unless the statute is complied with. California. Perkins -u. Cooper, 87 Cal. 243; Boyd v. Burrel, 60 Cal. 281; Bragi v. Howes, 63 Cal. 384; Holcomb Sawyer, 51 Cal. 417; Brown v. Green, 65 Cal. 222; Stratton v. Graham, 68 Cal. 168; Little v. Jacks, 68 Cal. 344; Duffy v, Greenebaum, 72 Cal. 159; In re Sker- rett, 80 Cal. 63; Schurtz v. Romer, 81 Cal. 245; Reed v. Kimball, 52 Cal. 325; Shaw v. Randall, 15 Cal. 385; Berniaud v. Beecher, 74 Cal. 618; Horn v. Vol- cano Water Co., 18 Cal. 143; Wood v. Pendola, 77 Cal. 82. New York. Langley v. Warren, i N. Y. 606; Kelsey v. Campbell, 38 Barb. (N. Y.) 238; Dresser v. Brooks, 5 How. Pr. (N. Y. Ct. of App.) 75; Cowdin v. Teal, 67 N. Y. 582; Architectural Iron Works Co. v. Brooklyn, 85 N. Y. 652; Raymond v. Richmond, 76 N. Y. 106; Matter of Dumesnil, 47 N. Y. 677; Benedict Mfg. Co. v. Thayer, 82 N. Y. 610; Musgrave v. Sherwood, 76 N. Y. 194; Wetting v. Moltz, 45 N. Y. Super. Ct. 392; Ferris v. Tannebaum (C. PI.),. 39 N. Y. St. Rep. 73. 986 Time for Filing Security. APPEAL BONDS. Generally. trial court. 1 Compliance with the order is not essential to the jurisdiction of the appellate court, and it may allow a new bond to be filed after the expiration of the time stated ; z although it is ground for dismissal of the appeal on proper objection by the appellee. 3 Utah. Cook v. Oregon Short Line, etc., R. Co., 7 Utah 416; People v. Fen- nel, 4 Utah 112; People v. Gough, 2 Utah 69. Michigan. Franks v. Smith, 45 Mich. 326; Craig v. Seitz, 63 Mich. 727. When Waiver Made. Under such a statute an order of court or an express stipulation of counsel dispensing with secur'ty must be made within the time for filing the undertaking or it is in- valid. Newman v. Maldonado (Cal., 1892), 30 Pac. Rep. 833; In re Skerrett, 80 Cal. 63; Perkins v. Cooper, 87 Cal. 241. But it need not be filed within that time. Newman v. Maldonado (Cal., 1892), 30 Pac. Rep. 833. After the right of appeal has been lost by the expiration of the time in which to take an appeal the undertak- ing cannot be waived. In re Skerrett, So Cal. 62; Wait v. Van Allen, 22 N. Y. 319; Clapp v. Hawley, 97 N. Y. 610. Under such statutes a motion to dis- miss the appeal, on the ground that the undertaking is substantially defec- tive, is not proper. The undertaking being ineffectual, no return could properly be made, as the cause is not properly on the calendar and there is no appeal to dismiss. The proper mo- tion is to strike the cause from the calendar. Raymond v. Richmond, 76 N. Y. 106; Reed v. Kimball, 52 Cal. 325- Appeal Granted in Term. Where an appeal may be taken either in term or by notice of appeal, and is granted in term upon order further requiring an appeal bond to be filed within a stated time, the filing of the bond is an essen- tial step in perfecting the term appeal; and where not filed within the required time the term appeal falls, but a new appeal may be taken on notice. Ex p. Sweeny, 131 Ind. 81; Holloran v. Mid- land R. Co., 129 Ind. 274; June v. Payne, 107 Ind. 307; Goodwin v. Fox, 120 U. S. 775; Webber v. Brieger, i Colo. App. 92. After Bendition of Judgment. The fact that the appeal bond is executed and given before the judgment ap- pealed from is rendered will not war- rant dismissal, as the obligors thereto are presumed to have contemplated the liability subsequently arising. James v. Wood, 65 Miss. 531; Byers v. Cook, 13 Oregon 297 ; Weiss v. Jackson County, 8 Oregon 529; Poppleton v. Nelson, 10 Oregon 437. Contra. The contrary was held in Wilson v. Haleman, 2 Ohio 253, and the appeal dismissed for lack of juris- diction where the bond was filed before rendition of judgment. Where a statute expressly provided that a trial court might grant an ap- peal "after affidavit and bond have been filed and approved," held, that the filing and approval prior to the grant- ing of the appeal were jurisdictional, and that where the trial court granted an appeal without such bond, the ap- peal would be dismissed. Green v. Castello, 35 Mo. App. 133; Corbin v. Laswell, 48 Mo. App. 626; Filley v. Walls, 4 Mo. 271; Townsend v. Finley, 3 Mo. 288; Jamison v. Yates, 7 Mo. 571. Order of Adjournment. Where an ap- peal bond must be filed within a certain time after final adjournment of the term, the final order of adjournment must appear in the transcript to show that the bond has been filed in time. Burr v. Lewis, 6 Tex. 76. 1. Lusk v. Kershow, 17 Colo. 481. 2. So, under the practice of the Su- preme Court of the United States and Illinois, an appeal bond is not essential to the jurisdiction where an appeal has been allowed and transcript duly filed. A mere failure to execute the bond with- in due time may be ground for dismissal of the appeal, but the court may pro- ceed to a determination of the appeal where the defect is waived. Edman- son v. Bloomshire, 7 Wall. (U. S.) 306; Richardson v. Green, 130 U. S. 104; Evans v. State Bank, 134 U. S. 330; Ettelson v. Jacobs, 40 111. App. 427; Kingsbury v. Buckner, 134 U. S. 682; Owen v. McKethe, 10 111. 79; Price v. Pittsburgh, etc., R. Co., 40 111. 44; Wormley v. Wormley, 96 111. 129; Car- son v. Merle, 4 111. 168. 3. Ex p. Milwaukee R. Co., 5 Wall. (U. S.)i88; Edmanson v. Bloom- shire, 7 Wall. (U. S.) 311; Seymour v. Freer, 5 Wall. (U. S.) 822; The Dos 987 Time for Filing Security. APPEAL BONDS. Generally. Extension. No court or judge has power to extend the time named in the statute j 1 but where fixed at discretion it may also be extended at discretion.* Hermanos, 10 Wheat. (U. S.) 306; Da- vidson -v. Lanier, 4 Wall. (U. S.) 454; O'Reilly v. Edrington, 96 U. S. 726; Brobst v. Brobst, 2 Wall. (U. S.) 96; Brown v. McConnell, 124 U. S. 491 ; Hewitt v. Filbert, 116 U. S. 142; Provi- dence Washington Ins. Co. v. Wager, 37 Ftd. Rep. 61. Unless the appellant shows good ground for his motion the court will not grant the order. Ettelson v. Jacobs, 40 111. App. 427; Davis -v. Davis, 27 Neb. 859; Bubb v. Cain, 37 Kan. 692; Duffy v. Greenbaum, 72 Cal. 157; Wooten v. Daniel, 16 Lea (Tenn.) 156; Pennington v. McNally, n Colo. 557; Harrison v. Hoff, 102 N. Car. 25. The court may allow a new bond to be filed at any time while the appeal survives. Ex p. Milwaukee R. Co., 5 Wall. (U. S.)i88; Edmanson v. Bloom- shire, 7 Wall. (U. S.) 311; Seymour v. Freer, 5 Wall. (U. S.) 822. But where the appeal has lapsed from failure to file a transcript within the time required, it cannot be revived by filing an appeal bond thereafter. The Dos Hermanos, 10 Wheat. (U. S.) 306; Edmanson v. Bloomshire, 7 Wall. (U. S.) 311. Computation of Time. The first day upon which the appeal bond may be filed or the order is made is excluded. Ewing v. Bailey, 5 111. 420; Brainard^. Norton, 14 111. App. 643; Carson v. Merle, 4 111. 168; Bushong v. Graham, 4 Ohio Cir. Ct. Rep. 138; Hax v. Leis, i Colo. 171. And the last day is included, unless it is Sunday and ex- pressly excluded by statute. Brainard v. Norton, 14 111. App. 643. Presumption The entry on the judge's docket, "appeal allowed," is evidence that the appeal bond is filed in time, as a public official is presumed to do his duty. Carroll v. Jacksonville, 2 111. App. 481. Texas. In Texas it is held that a stat- ute requiring a bond to be filed within a certain period after judgment is com- plied with by filing it within the defined time after the denial of a motion for new trial. Williams v. Sims (Tex. App., 1890), 16 S. W. Rep. 786; West v. White (Tex. App., 1800), 16 S. W. Rep. 788. Time Meaning of Term ' ' Rising of Court." Where the statute requires an appeal bond to be filed within a certain period after the " rising of the court," final adjournment for the term is meant. Morgan v. Stittigan, 10 West L. J. (Ohio) 74. Order Dispensing with Security. Where statutes allow the trial court t- dispense with security in special cases by making an order to that effect, the order should be made within the time allowed for filing the appeal bond, and that fact must be recited on its face. In re Skerrett, 80 Cal. 62. Petition. In Acker v. Alexandria, etc., R. Co., 84 Va. 648, it was held that the days during which the court held the petition for appeal and the record, before granting the appeal, should be excluded in estimating the time within which an appeal bond must be filed. Louisiana. An appeal bond may be filed in a devolutive appeal any time before the return day. Glover v. Taylor, 38 La. Ann. 634. 1. Elliott v. Chapman, 15 Cal. 383; Gordons. Wansey, 19 Cal. 82; Aram v. Shallenberger, 42 Cal. 277; Reed v. Kimball, 52 Cal. 325; McCracken v. Los Angeles County 86 Cal. 74; Kenny v. Jones, 37 111. App. 615; Davis v. Wilson, 85 Tenn. 385. Unless statutes expressly authorize it. McCracken v. Los Angeles County, 86 Cal. 74. 2. Pennington v. McNally, n Colo. 558; McFarland v. McFarland , 4 111. App. 157; Borden v. Houston, 2 Tex. 594- The order fixing and extending the time must be made during the term at which judgment is rendered, unless au- thorized otherwise by statute. Pen- nington z'. McNally, n Colo. 558; Owen v. Going, 7 Colo. 85; McFarland v. McFarland, 4 111. App. 157; Borden v. Houston, 2 Tex. 594; Layman v. Graybill, 14 Ind. 166 ; Ex p. Casey, 18 Fed. Rep. 86. On Notice. The adverse party must have notice of the application to extend the time, but where the record is silent it will be presumed to have been duly given. Pennington v. McNally, n Colo. 559; Martin v. Force, 3 Colo. 199; Gomer v. Chaffe, 5 Colo. 383; Hughes v. Cummings, 7 Colo. 138. Further Security. In Robare v. Ken- dall, 22 Neb. 677, it was held that, where 988 Time for Filing Security. APPEAL BONDS. Date of Filing: 2. Notice of Appeal. Where required by statute to be filed after the notice of appeal the bond is invalid if filed before. 1 But if filed the same day it will be presumed to have been filed after.'-* Unless the statute prescribes the order of filing it may be filed either before or after if within the statutory time. 3 3. Date of Filing. The date of an appeal bond or undertaking does not affect its validity. 4 It takes effect when approved and actually filed. 5 The recitals of the record as to date of filing prevail over the date of the bond, where they conflict. 6 Where nothing to the contrary appears the appeal bond will be pre- sumed to have been filed on the day it was justified ; r but appellant may show as a fact that it was seasonably filed, when not incon- sistent with the record. 8 an order requiring a further undertak- ing had been granted by the court, and not complied with, the court might again extend the time, or allow appel- lant to show the original security suffi- cient. 1. Brown v. Hanley, 2 Idaho 950; Cook v. Oregon, etc., R. Co., 7 Utah 416; Carpentier v. Williamson, 24 Cal. 609; Buckholder v. Byers, 10 Cal. 481; Darling v. More, 19 Cal. 81; Little v. Jacks, 68 Cal. 343; Weiss v. Jackson County, 8 Oregon 529; Poppleton v. Nelson, 10 Oregon 437; Dahl v. Tibbals, 5 Wash. 261. So, where the statute requires an undertaking to be served and filed with the notice of appeal, the undertaking is not good where filed and served at another time. New York Cent. Ins. Co. v. National Pro. Ins. Co., 10 How. Pr. (N. Y. Ct. of App.) 344. Such statutes do not require that the bond should be filed within the time for "taking an appeal." If filed within the statutory time after service of no- tice it is sufficient. Lowell v. Lowell, 55 Cal. 318. Date. The fact that the appeal bond is dated anterior to the notice of ap- peal after which it is required to be filed will not invalidate the appeal where it is actually filed thereafter or on the same day with the notice of ap- peal. Dahl v. Tibbals, 5 Wash. 261; Poppleton -v. Nelson, 10 Oregon 437. Notice Before Undertaking. So on ap- peal to the Supreme Court of Cali- fornia it was held that the filing of the notice must precede the filing of the undertaking; otherwise there is noth- ing on which to base the undertaking. Buckholder v. Byers, 10 Cal. 481; Hastings v. Halleck, loCal. 31; Frank- lin v. Renier, 8 Cal. 340; Whipley v.. Mills, 9 Cal. 641. New York. Under the practice of New York a notice of appeal to the court of appeals may be served before any undertaking has been executed, and the undertaking may be given at any time before the expiration of the time for appealing; but the notice of appeal does not become effectual for any purpose until the undertaking has been given. Raymond v. Richmond, 76 N. Y. 106. 2. Poppleton v. Nelson, 10 Oregon 437; Hastings v. Halleck, 10 Cal. 31. Filing New Undertaking. Where the undertaking is filed before notice of appeal is given it may be remedied by filing a new undertaking on affidavit showing reasonable excuse for the mis- take ; but simply refiling is not enough. Hawthorne v. East Portland, 12 Ore- gon 210; Weiss v. Jackson County, & Oregon 529. 3. Emerson v. Atwater, 5 Mich. 34; Dutertre v. San Francisco, 84 Cal. 535; Coker v. Colusa County, 58 Cal. 177; Columbet v. Pacheco, 46 Cal. 651. Notice of Filing. Service of notice of appeal operates as a notice of the filing of the appeal bond. Columbet v. Pacheco, 46 Cal. 650. 4. Pray v. Wasdell, 146 Mass. 327; .Dahl v. Tibbals, 5 Wash. 261. 5. Pray v. Wasdell, 146 Mass. 327; Dahl v. Tibbals, 5 Wash. 261. 6. Miller v. Shea, 150 Mass. 283; Hoagland v. Schnorr, 17 Ohio St. 30. 7. Boyden v. Williams, 92 N. Car. 546; Harmon v. Herndon, 99 N. Car. 477- 8. Harmon v. Herndon, 99 N. Car. 477; Bowen v. Fox, 98 N. Car. 396;. Carroll v. Jacksonville, 2 111. App. 481. 989 Amendment. APPEAL BONDS. When Bond is Void. 4. Official Misconduct. Where the appellant complies in good faith with all the law requires of him, but the misconduct or neg- ligence of an official prevents due filing of the bond, the omission will be excused and the bond allowed to be filed nunc pro tune.* XIII. AMENDMENT 1. When Bond is Void. When the defects of an appeal bond render it void, the appellate court acquires no jurisdiction, even to allow an amendment. 2 Where irregular merely, it will vest jurisdiction to amend, or to hear the appeal as against the appellant. 3 Effect of Lack of Jurisdiction. Where the trial court has no jurisdic- tion of the person of the appellant in the suit in which the appeal The date of an appeal bond is no part of it, and where essential the day of execution may be shown by parol. Littell -v. Bradford, 8 Blackf. (Ind.) 185. It is not necessary to specify the day of the month in the date of the bond. Shaughnessey v. Lewis, 130 Mass. 355; Guez v. Dupuis, 152 Mass. 454. Appeal bonds will be held to have been completed at their date where there is nothing to establish another time. Allen v. Rhodebaugh, Wright (Ohio) 322. Erroneous Indorsement. Where an appeal bond is actually approved and filed in time, a subsequent erroneous date of approval indorsed by clerical mistake is an immaterial error. King v. Ingham Circuit Judge, 69 Mich. 84. 1. Little v. Smith, 5 111. 400; Ewing v. Bailey, 5 111. 420; Beardsley v. Hill, 61 111. 354; Robinson v. Mhoon, 68 Miss. 712; Mullerz/. Humphreys (Tex. App., 1889), 148. W. Rep. 1068; Henderson v. Trousdale, 10 La. Ann. 548; Ingram v. Flasket, 3 Blackf. (Ind.) 450; State v. Leigh, 45 Kan. 523; Hooks v. Stamper, 18 Ga. 471. 2. Santom v. Ballard, 133 Mass. 464; Jacobs v. Narrow, 21 Neb. 233; Scot- ten v. Divelbisa, 46 Ind. 302; McVey v. Heavenridge, 30 Ind. 100; Pacific Paving Co. v. Bolton, 89 Cal. 154; Hardaway v". Biles, i Smed. & M. (Miss.) 658; Porter v. Grisham, 3 How. (Miss.) 76. So where the appeal bond or under- taking is void because it fails to refer properly to the appeal, it will not sup- port a motion for leave to file a new one. Pacific Paving Co. v, Bolton, 89 Cal. 154. 3. Riley v. Mitchell, 38 Minn. 13 ; Woodman v. Calkins, 12 Mont. 456; Stapleton v. Pease, 2 Mont. 508; Pierse v. Miles, 5 Mont. 549; Territory v. Milroy, 7 Mont. 559; Acker z>. Alexan- dria, etc., R. Co., 84 Va. 650; Saterlee v. Stevens, n Ohio 420 ; Fairbank v. Streeter, 41 111. App. 436; Murphy -6. Consolidated Tank Line Co., 32 111. App. 613; Knowles v. Wayne City, 31 111. App. 475; Com. v. Watts, 84 Ky. 537; Mahlman -v. Williams (Ky., 1889), 12 S. W. Rep. 335; Willis v. Rivers, 80 Ga. 556; De Gruy v. Aiken, 43 La. Ann. 798; Wilson v. Bennett, 132 Ind. 210; Southern Pac. R. Co. v. Stanley, 76 Tex. 418; Warren v. Marberry, 85 Tex. 193; Putnam v. Boyer, 140 Mass. 237; Santom v. Ballard, 133 Mass. 464; Keene v. White, 136 Mass. 23; Wheeler, etc., Mfg. Co. v. Burlingham, 137 Mass. 581; McCracken v. Los Angeles County, 86 Cal. 74; Coulter v. Stack, 7 Cal. 244; Cunningham v. Hopkins, 8 Cal. 33; Rath v. Hamilton, 15 Cal. 31; Gray v. Amador County, 61 Cal. 337; Coker v. Colusa County, 58 Cal. 177; Schurtz v. Romer, 81 Cal. 246; Smith v. Biscailuz, 83 Cal. 344; Forbes v. Porter, 23 Fla. 47; Ridabock v. Levy, 8 Paige (N. Y.) 197; Littell v. Brad- ford, 8 Blackf. (Ind.) 185. Approval. Or where the bond was not officially approved. Putnam v. Boyer, 140 Mass. 237. Failure to Name Sureties. A failure to name the sureties on the bond at the time of praying the appeal does not invalidate the bond. Wilson v. Bennett, 132 Ind. 210. What Sufficient to Test Jurisdiction. Any binding obligation duly filed to pay damages or costs on appeal in any contingency will, unless the statute expressly makes a defective bond void, confer jurisdiction on the appel- late court to allow amendment. Wood- man v. Calkins, 12 Mont. 456; Clinton v. Phillips, 7 T. B. Mon. (Ky.) 118; Saterlee v. Stevens, u Ohio 420. 990 Amendment. APPEAL BONDS. When Unnecessary. is taken, the appeal bond therein is wholly void. 1 But lack of jurisdiction over the subject-matter in either the appellate or the trial court does not avoid the bond. 3 By entering into the bond the appellant is estopped from denying jurisdiction of the court where suit is brought upon the bond for costs by the appellee. 3 2. When Unnecessary. An appeal bond or undertaking is suffi- cient where it substantially complies with the statute, although it varies from its language. 4 It is sufficient if its legal effect be to 1. Robertson v. Smith, 129 Ind. 422; Caffrey v. Dudgeon, 38 Ind. 512; Olds v. State, 6 Blackf. (Ind.) 91; State v. Younts, 89 Ind. 313; Ham v. Greve, 41 Ind. 531; Deardorff v. Ulmer, 34 Ind. 353; State v. McLaughlin, 77 Ind. 335; Sherry -v. Foresman, 6 Blackf. (Ind.) 56; Eddy v. Beal, 34 Ind. 159; Byers v. State, 20 Ind. 47; Memmler v. Rob- erts, 81 Ga. 659; Tarbell v.- Gray, 4 Gray (Mass.) 444 ; Bridge v. Ford, 4 Mass. 641; Green v. Haskell, 24 Me. 180. The appellant is not estopped to raise the objection of want of jurisdic- tion in the suit to enforce the obli- gation of the bond. Robertson v. Smith, 129 Ind. 422. 2. Robertson v. Smith, 129 Ind. 422; Adams v. Olive, 57 Ala. 249; Steven- son v. Miller, 2 Litt. (Ky.) 310; Hanna v. McKenzie, 5 B. Mon. (Ky.) 314, 43 Am. Dec. 122; Hoy v. Rogers, 4 T. B. Mon. (Ky.) 225; Cumberland Coal, etc., Co. -v. Hoffman Steam Coal Co., 39 Barb. (N. Y.) 16. 3. Robertson v. Smith, 129 Ind. 422; Cumberland Coal, etc., Co. v. Hoff- man Steam Coal Co., 39 Barb. (N. Y.) 16; Carver v. Carver, 77 Ind. 498; Cun- ningham v. Jacobs, 120 Ind. 306; Har- baugh v. Albertson, 102 Ind. 69 ; Stevenson v. Miller, 2 Litt. (Ky.) 310; Hoy v. Rogers, 4 T. B. Mon. (Ky.) 225; Hanna v. McKenzie, 5 B. Mon. (Ky.) 314, 43 Am. Dec. 122; Adams v. Olive, 57 Ala. 249. Contra. In other cases it is held that, where the appeal is void because not taken in time or for any other cause, the appeal bond is void as inci- dental thereto. Garnet v. Rodgers, 52 Mo. 145; Smith v. St. Louis, etc., R. Co., 53 Mo. 338; Hessey v. Heit- kamp.gMo. App. 36; Kinserz/. Shands, 52 Mo. 326; Smith v. St.. Louis, etc., R. Co., 53 Mo. 338; Brown v. Missouri Pac. R. Co., 85 Mo. 123; Lamonte v. Montebello, 21 111. App. 186; Brounty v. Daniels, 23 Neb. 165; Memmler v. Roberts, 81 Ga. 359. Where a motion to set aside a de- fault is required before an appeal can be taken from a judgment, the appeal bond is void where no such motion is made. Brown v. Missouri Pac. R. Co., 85 Mo. 123. A judgment against sureties on such a bond is erroneous. Smith v. St. Louis, etc., R. Co., 53 Mo. 338. 4. Knight v. People, n Colo. 308; Russell v. Monson, 33 Conn. 506. Alabama. Williams v. State, 26 Ala. 85; Modawell v. Holmes, 40 Ala. 391; Satterwhite v. State, 28 Ala. 65; Light- foot v. Strahan, 7 Ala. 444; Windham v. Coats, 8 Ala. 285; Whitsett v. Womack, 8 Ala. 466; Ex p. Weis- singer, 7 Ala. 710; Sanders v. Rives, 3 Stew. (Ala.) 109. Texas. Southern Pac. R. Co. v. Stanley, 76 Tex. 418; Batsel v. Blaine (Tex. App., 1891), 15 S. W. Rep. 283; Halbertz/. Alford(Tex., 1891), i6S. W. Rep. 814; Elkins v. State, 26 Tex. App. 220; Cavanaugh v. Fort Worth, 26 Tex. App. 85; Pace v. Webb, 79 Tex. 314; Figures v. Dunklin, 68 Tex. 645 ; Zidek v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 143; Jordan v. Moore, 65 Tex. 363; Halbert v. Alford (Tex., 1891), 16 S. W. Rep. 814. Minnesota. Anderson v. Meeker County, 46 Minn. 237; Riley v. Mitchell, 38 Minn. 9. North Carolina. Walker v. Will- iams, 88 N. Car.7; Chamblee v. Baker, 95 N. Car. 98; McMinn v. Patton, 92 N. Car. 371; Bennehan v. Webb, 6 Ired. (N. Car.) 250; Iredell v. Barbee, 9 Ired. (N. Car.) 250; Gully v. Gully, i Hawks. (N. Car.) 20. Ohio. Bentley v. Dorcas, n Ohio St. 398; Gardener v. Woodyear, i Ohio 170; Creighton v. Harden, itfOhio St. 579- Massachusetts. Kendall v. Gleason, 152 Mass. 457; Com. v. Richards, 17 Pick. (Mass.) 295; Com. v. Dunham, 22 Pick. (Mass.) u; Guez v. Dupuis, 152 Mass. 454; Wellesley v. Washburn, 156 Mass. 359. 991 Amendment. APPEAL BONDS. When Unnecessary. secure to the appellee all the rights contemplated by the statute requiring the bond, 1 and in such cases it need not be amended. Kentucky. Stockton v. Turner, 7 J. J. Marsh. (Ky.). I 9 2 < Moore v. Gorin, 2 Litt. (Ky.) 186; Feemster v. An- derson, 6 T. B. Mon. (Ky.) 537; Cobb v. Beaty, 3 T. B. Mon. (Ky.) 391. Illinois. Hennies v. People, 70 111. 100; Schill z: Reisdorf, 88 111. 411; Waldo v. Averett, 2 111. 487; Gillilan v. Gray, 13 111. 705; Mason v. Johnson, 24 111. 159. Georgia. Seymore v. Howard, 15 Ga. no; Scott v. Turpin, 30 Ga. 964; Hogg v. Mobley, 8 Ga. 256. Louisiana. DeGruy v. Aiken, 43 La. Ann. 798; Glover v. Taylor, 38 La. Ann. 634; Littleton v. Pratt, 10 La. Ann. 487. California. Billings v. Roadhouse, 5 Cal. 71; Zoller v. McDonald, 23 Cal. 136; Williams v. Dennison, 86 Cal. 430. Missouri. Strange v. Ellis, i Mo. 412; State v. Thompson, 81 Mo. 163. New York. Teall v. Van Wyck, 10 Barb. (N. Y.) 379; Foster v. Foster, 7 Paige (N. Y.) 48. United States. Gay v. Parpart, 101 U. S. 391; Kountze v. Omaha Hotel Co., 107 U. S. 396. Mississippi. Coleman v. Rowe, 4 Smed. & M. (Miss.) 747; Conger v. Rob'n on, 4 Smed. & M. (Miss.) 210; Swan v. Home, 54 Miss. 337. Indiana. Canal-Boat Standard v. Bond, 8 Ind. 270; Carmichael v. Hol- loway, 9 Ind. 519. Other States. Miller v. Holding, 5 Del. 494; Mathew v. Morrison, 13 R. I. 309; Whitehead v. Thorp, 22 Iowa 425; Stapleton v. Pease, 2 Mont. 508. An appeal bond sufficient to hold all the parties thereto liable upon all the contingencies and under all the conditions named in the statute is a substantial compliance with the stat- ute. Bentley v. Dorcas, n Ohio St. 398; Creighton v. Harden, 10 Ohio St. 579- Variations in Language. Variations in language in the appeal bond cannot be carried to the extent of giving it an effect contrary to the intents of the statute. , Kountze v. Omaha Hotel Co., 107 U. S. 395. Surplusage. If the bond embraces all the statutory requirements, the addition of matters not authorized thereby may be considered surplus- age, and rejected unless so connected with the remainder that they cannot be elided. Mathews v. Morrison, 13 R. I. 307; Williams v. Dennison, 86 Cal. 430; Guez v. Dupuis, 152 Mass. 454; Jordan v Moore, 65 Tex. 363; Landa v. Heermann, 85 Tex. i; Kountze v. Omaha Hotel Co., 107 U. S. 391. " Intends to Appeal." A recital in an appeal bond or undertaking that a party "intends to appeal," instead of "does appeal," does not avoid its effect where otherwise regular. For- rest v. Havens, 38 N. Y. 470. 1. Riley v. Mitchell, 38 Minn, n; Kasson v. Brocker, 47 Wis. 79; Creigh- ton v. Harden, 10 Ohio St. 579; Bent- ley v. Dorcas, n Ohio St. 398; Gard- neer v. Woodyear, i Ohio 170; Gay v. Parpart, 101 U. S. 391; Kountze v. Omaha Hotel Co., 107 U. S. 396; Saun- ders v. Rives, 3 Stew. (Ala.) 109; Field v. Schricher, 14 Iowa 124; Kendall v. Gleason, 152 Mass. 457; Shaughnessey v. Lewis, 130 Mass. 355; Shaw v. Mc- Intier, 5 Allen (Mass.) 423; Martin v. Campbell, 120 Mass. 126; Pray v. Was- dell, 146 Mass. 328; Doolittle v. Din- inny, 31 N. Y. 350; Smith v. Norval, 2 Code Rep. (N. Y.) 14; Foster v. Foster, 7 Paige (N. Y.) 50; Coleman v. Rowe, 4 Smed. & M. (Miss.) 747; Waters v. Riley, 2 Har. & G. (Md.) 305, 18 Am. Dec. 302; Cobb v. Beaty, 3 T. B. Mon. (Ky.) 391; Kirby v. Collins, 5 Wash. 682. Condition as to Costs. As when the condition of the bond was to pay all costs which should be taxed against the appellants in the event of their failure on appeal, instead of to pay such costs in the event of their failure to obtain a reversal of the decision appealed from. Foster v. Foster, 7 Paige (N. Y.).4g. Directory Provisions of Statute. Non- compliance with directory provisions of the statute does not vitiate an appeal bond if the appellee make ; no objection on that ground. Dore v. Covey, 13 Cal. 503; Van Dusen v. Hayward, 17 W T end. (N. Y.) 67; Ives v. Finch, 22 Conn. 101; Clinton v. Phillips, 7 T. B. Mon. (Ky). 119. What Provisions Directory. In Dore v. Covey, 13 Cal. 503, requirements that residence of the sureties with their oc- cupations should be stated in the under- taking, and that the penalty should be in double the amount of the judgment, were held directory. 992 Amendment. APPEAL BONDS. Power to Amend. 3. Power to Amend. Appellate courts cannot allow a substan- tially defective appeal bond to be amended without statutory authority. 1 But such statutory authority may be implied from a general authority to amend appellate proceedings. 2 Strict Compliance with Substantial Re- quirements. The substantial require- ments of the statute or order must be strictly complied with. Chambers v. Miller, 7 Tex. 75; Payne v. State, 30 Tex. 397 ; Bennett v. State,'3O Tex. 446; Hasty v. State, 32 Tex. 97; Burch v. Bastrop, 38 Tex. 80; Lockart, v. Lytle, 36 Tex. 189; Dossz/. Griswold, I Tex. 99; State v. Judge, 16 La. Ann. 371; Jordan v. McKenny, 45 Me. 306; State -v. Boies, 41 Me. 346; Bowie v. Hogan, 5 How. (Miss.) 13; Crawford v. yEtna L. Ins. Co., 12 Heisk. (Tenn.) 154- Recognizance. Where the statute re- quires separate recognizance from the principal and his sureties, a joint re- cognizance is not sufficient. Stroud v. State, 33 Tex. 650. Where the obligation of the sureties covers but one-half the amount of the recognizance, it is fatally defective. Adams v. State, 34 Tex. 526. A recognizance on appeal reciting that defendant shall "appear from day to day, and from term to term, and abide the decision of the Supreme Court, and not depart without leave," is defective as stating no court at which he is bound to appear. Maxwell v. State, 38 Tex. 171. A recognizance should state the time, place, offense, and court in which the party is required to appear. Adler v. State, 31 Tex. 61; Breeding v. State, 31 Tex. 94; Hicklin v. State, 31 Tex. 492. A recognizance must bind the appel- lant to abide the judgment of the court to which the appeal is taken. A re- cognizance binding the defendant to " abide the judgment of the State of Texas " was held fatally defective, and the appeal was dismissed on motion. Douglass v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 43; Cummings v. State, 31 Tex. Crim. App. 406. So one which describes the appellate court as the " Court of Appeals," instead of " Court of Criminal Appeals." Garza v. State (Tex. Crim. App., 1893), 22 S. W. Rep. 139. Voluntary Bond. An appeal bond, al- though a statutory obligation, is a vol- untary, not an official, bond, unless given to a public officer; and where it substantially conforms to the statutory requirements it will not be construed with the stringency applicable to official bonds. Forrest v. Havens, 38- N. Y. 470. 1. Ramsey z/.Childs, 34 Hun (N. Y.) 329. Wilson v. Allen, 3 How. Pr. (N. Y. Supreme Ct.) 369; Langley v. War- ner, 3 How. Pr. (N. Y. Ct. of App.) 363; Crawford v. Alexander, 14 La. Ann. 719; Pittman v. Myrick, 16 Fla. 403; Walsh v. People, 12 111. 77; Swafford v. People, 2 111. 289; Beebe v. Young, 13 Mich. 222 ; Cuddleback v. Parks, 2 Greene (Iowa) 148; Ex. p. Chryslin, 4 Cow. (N. Y.) 80. Filing Bond a "Proceeding." In O'Dea v. Washington County, 3 Neb. 122, it was held that filing an appeal bond was a "proceeding" on appeal within the meaning of the statute of correction. Criminal Cases. The same require- ment of statutory authority applies to criminal cases. Swafford v. People, 2 111. 289; Walsh v. People, 12 111. 77. 2. Wilson v. Allen, 3 How. Pr. (N. Y. Supreme Ct.) 369; Shelton v. Wade, 4 Tex. 148. Effect of Curative Statutes. Indiana. Parties are deemed to have entered into an appeal bond with reference to existing statutes of amendment, and their intent will be interpreted in the light of their requirements. State v. Britton, 102 Ind. 216; State v. Berg, 50 Ind. 496. A curative statute providing that no appeal bond shall be void for defects of form or sustance, but that such de- fects shall be deemed amended in con- formity with the statute, binds the principal and sureties in the amount and under the conditions prescribed by the statute, whatever the defects of form or substance. Ward v. Buell, 18 Ind. 104, 81 Am. Dec. 349; Cook v. State. 13 Ind. 154; Sturgis v. Rogers, 26 Ind. i; Huddson v. Arm- strong, 70 Ind. 99; Opp. v. Ten Eyck, 99 Ind. 345; Black v. State, 58 Ind. 589; Fuller v. Wright. 59 Ind. 333; Gavisk v. McKeever, 37 Ind. 484; Corey v. Lugar, 62 Ind. 60; Dunn v. Crocker, 22 Ind. 324; Moore v. Jack- son, 35 Ind. 360; Boden v. Dill, 58 i Encyc. PI. & Pr. 63. 993 Amendment. APPEAL BONDS. Power to Amend. Discretion of Court. Unless the statute mandatorily requires the allowance of amendment in the mode specified, it is a matter of discretion. 1 4. Construction of Statutes. Statutes allowing amendment are liberally construed as remedial. 2 Where it appears that the appeal is taken in good faith the appellant will generally be al- lowed toamend an insufficient, or file a new, bond on seasonable application. Ind. 273; Bugle v, Myers, 59 Ind. 73, overruling Moline v. McClain, 3 Ind. 532; Epstein v. Greer, 85 Ind. 372. Their effect is to legalize bonds oth- erwise fatally defective, and to make them by force of the statute such an instrument as the statute requires. Railsback v. Greve, 58 Ind. 72; Miller v. McAllister, 59 Ind. 491; Turners. State, 66 Ind. 210; Graham v. State, 66 Ind. 386; State v. Wyant, 67 Ind. 25; Millers. O'Reilly, 84 Ind. 168; State z/. Britton, 102 Ind. 214; Yeakle v. Wint- ers, 60 Ind. 554; Smock v. Harrison, 74 Ind. 348; Jones v. Droneberger, 23 Ind. 74; Ward v. Buell, 18 Ind. 104, 81 Am. Dec. 349; Easter v. Acklemire, 81 Ind. 163; Phillipi Christian Church v. Har- baugh, 64 Ind. 240; Bugle v. Myers, 59 Ind. 73; Koeniger v. Creed, 58 Ind. 554; Corey v. Lugar, 62 Ind. 60; Ful- ler v. Wright, 59 Ind. 333; Gavisk v. McKeever, 37 Ind. 484. Omission to Name Penalty. An omis- sion to name a penalty does not there- fore invalidate a bond where the stat- ute prescribes its amount. State v. Britton, 102 Ind. 216. Omission of Proper Condition. In Opp v. Ten Eyck, 99 Ind. 345, it was held that, where a statute provided that an appeal bond should be conditioned, in an action for recovery of real estate to satisfy all damages for mesne profits pending the appeal, an omission, to so condition the bond does not affect the validity of the bond or release the ap- pellant from the statutory require- ment. Limitation on Effect of Curative Statute. In Sturgisz/. Rogers, 26 Ind. i, it was held that no interpretation of a statute would be given whose effect would be to create a new and different contract and bind parties to perform it unless the statute would not possibly admit any other interpretation. 1. Shelton v. Wade, 4 Tex. 148; Grain v. Bailey, 2 111. 322; Griffin v, Belleville, 50 111. 422; Harlan v. Scott, 3 111. 66; Zuckerman v. Howes, 146 111. 59; Martin v. Hunter, I Wheat. (U. S.) 304; Seward v. Corneau, 102 U. S. 161; Hardt v. Schulting, 59 How. Pr. (N. Y. Supreme Ct.) 353; Parker v. McCunn, 9 N. Y. Wkly. Dig. 245; Thomas v. Alton, 5 Mo. 534. Under a statutory power to amend, errors in matters of substance occur- ring through inadvertence or mistake of law may be corrected. Potter v. Baker, 4 Paige (N. Y.) 292. 2. Gaddis v. Palmer, 60 Miss. 758; Germania Bldg., etc., Co. v. Kern, 4 Ohio Cir. Ct. Rep. 35; Reformed Presbyterian Church v. Nelson, 35 Ohio St. 638; Johnson v. Johnson, 31 Ohio St. 131; Watts v. Shewell, 31 Ohio St. 331; Hays v. Rush, 5 Cine. L. Bull. (Ohio) 328; Thomas v. Alton, 5 Mo. 534; Hawthorne v. East Port- land, 12 Oregon 210; Architectural Iron Works Co. v. Brooklyn, 85 N. Y. 652; Hoyer v. Mascoutah, 59 111. 137; Fink v. Disbrow, 69 111. 76; Carroll v. Jacksonville, 2 111. App. 481; Hinman v. Kitterman, 40 111. 253; Dedman v. Barber, 2 111. 254; Hubbard v. Freer, 2 111. 469; Waldo v. Averett, 2 111. 487; Rider v. Bagley, 47 111. 365; Patty v. Winchester, 20 111. 261; Stilley v. King, 3 111. App. 338. 3. California. Howard v. Harman, 5 Cal. 78; Billings v. Roadhouse, 5 Cal. 71; Coulter v. Stark, 7 Cal. 244; Coker v. Colusa County, 58 Cal. 177; Rabe v. Hamilton, 15 Cal. 31; Gray v. Amador County, 61 Cal. 337; Cunningham v. Hopkins, 8 Cal. 33; McCracken v. Los Angeles County, 86 Cal. 76. Illinois. Weist v. People, 39 111. 507; Carroll v. Jacksonville, 2 111. App. 481; Stuckey v. Churchman, 2 111. App. 584; Appanooce v. Kneff, 2 111. App. 583; Partridge v. Snyder, 78 111. 519; Wear v. Killeen, 38 111. 259; Patty v. Win- chester, 20 111. 261; South Range v. Starbird, 13 111. 49; Hubbard v. Freer, 2 111. 467; Bragg v. Fessenden, n 111. 544; Pacific Express Co. v. Hauptman, ii 111. App. 367. Wisconsin. Russell v. Bartlett, 9 994 Amendment. APPEAL BONDS. Power to Amend. Review of Order Allowing or Refusing Amendment. An order of court granting or refusing a party desiring to appeal leave to amend an Wis. 556; Falk v. Goldberg, 45 Wis. 94; Gibank v. Stephenson, 30 Wis. 155; Branger v. Buttrick, 30 Wis. 153; Grant v. Connecticut Mut. L. Ins. Co., 28 Wis. 387; Paris v. Eager, 15 Wis. 532; Helden v. Helden, 9 Wis. 557; Gilbank v. Stephenson, 30 Wis. 155. Indiana. States/. Wyant, 67 Ind. 25; Murphy v. Steele, 51 Ind. 81; Humble v. Williams, 4 Blackf. (Ind.) 473; Mc- Call v. Trevor, 4 Blackf. (Ind.) 496; State v. Berg, 50 Ind. 496; Meehan v. Wiles, 93 Ind. 52; Yeakle v. Winters, 60 Ind. 554; Stevenson v. State, 71 Ind. 52; Graham v. State, 66 Ind. 386; Rails- back v. Greve, 58 Ind. 72; Miller v. O'Reilly, 84 Ind. 168; Gavisk v. Mc- Keever, 37 Ind. 484; Clift v. Brown, 95 Ind. 53. Ohio. Irwin v. Bank of Bellefon- taine, 6 Ohio St. 86; Johnson v. John- son, 31 Ohio St. 132; Reformed Pres- byterian Church v. Nelson, 35 Ohio St. 638; Germania Bldg., etc., Co. v. Kern, 4 Ohio Cir. Ct. Rep. 35. Montana. Territory v. Bell, 5 Mont. 562; Territory v. Milroy, 7 Mont. 559; Woodman v. Calkins, 12 Mont. 456; Stapletonz/. Pease, 2 Mont. 508; Pierse v. Niles, 5 Mont. 549. Pennsylvania. Kerr v. Martin, 122 Pa. St. 436; Means v. Tront, 16 S. & R. (Pa.) 349; Koenig v. Bauer, 57 Pa. St. 168; Mcllhaney v. Holland, in Pa. St. 634. New York. Ten Eick v. Simpson, n Paige (N. Y.) 177; Architectural Iron Works Co. v. Brooklyn, 85 N. Y. 652; O'Sullivan v. Connors, 22 Hun (N. Y.) 137- Iowa. Brock v. Manatt, I Iowa 128; Hammitt v. Coffin, 3 Greene (Iowa) 205; Mitchell v. Goff, 18 Iowa 424. Oregon. Hawthorne v. East Port- land, 12 Oregon 210; DeLashmutt v. Sellvvood, 10 Oregon 319; State v. Mc- Kinsmore, 8 Oregon 207. Tennessee. Snyder v. Summers, I Lea (Tenn.) 482; Andrews v. Page, 2 Heisk. (Tenn.) 641; Morris v. Smith, n Humph. (Tenn.) 134. Nebraska. Jacobs v. Morrow, 21 Neb. 233; Bazzo v. Wallace, 16 Neb. 293; Clark v. Strong, 14 Neb. 229. Texas. George v. Lutz, 35 Tex. 694; Shelton v. Wade, 4 Tex. 148. United States. O'Reilly v. Edring- ton, 96 U. S. 724; Furguson v. Dent, 29 Fed. Rep. i. Arkansas. Morrison v. State, 40 Ark. 448. Minnesota. Riley v. Mitchell, 38 Minn. 13. Washington. Kirby v. Collins, 5 Wash. 682. Void Bond. A bond which is void cannot be amended, as the court ac- quires no jurisdiction over the appeal to act on the application. Riley v. Mitchell, 38 Minn. 13. Time. Nor can a bond be amended which was not filed within the statu- tory period, as the allowance of the amendment would be in effect to allow a new appeal after the time for appeal- ing had expired. Jacobs v. Morrow, 21 Neb. 233. Correction by Clerk. The clerk has no power to correct irregularities in a bond of his own motion. Livingston v. White, 2 La. Ann. 902. Amendable Defects. Omission of some of the conditions required by statute is an amendable defect. John- son v. Johnson, 31 Ohio St. 131. Defective Conditions. So, where the appeal bond was conditioned that "said appellant will pay all damages and costs which may be awarded against defendants on appeal," and omitted the words required by stat- ute, "or on a dismissal thereof," held amendable. Woodman v. Calkins, 12 Mont. 456. Acknowledgment. The failure to acknowledge an appeal bond before a proper officer may be cured by the allowance of a new acknowledgment to the bond filed. Ridabock v. Levy, 8 Paige (N. Y.) 197. Statutory Amount. A bond deficient in not being for the statutory amount is amendable. Long v. Smith, 39 Tex. 164; King v. Hopkins, 42 Tex. 48. Naming Only One Surety. Where an appeal bond is deficient in naming only one surety where two are required, it is amendable. Hays v. Rush, 5 Cine. L. Bull. (Ohio) 328; Landa v. Heerman, 85 Tex. i; King v. Hopkins, 42 Tex.' 48. Name of Court. The failure to name the court to which the appeal is taken is amendable. George v. Lutz, 35 Tex. 694. Official Negligence. Where the bond is defective from official negligence the parties should, where any power of amendment exists, be allowed to exe- 995 Amendment. APPEAL BONDS. Power to Amend. appeal bond is reviewable on appeal as affecting a substantial right. 1 Right of Appellee. The appellee is strictly entitled to the very- bond prescribed by statute. 2 He may compel the correction of clerical and formal errors by a proper motion, although they are not sufficient to authorize the appellate court to dismiss the appeal. 3 And where the defects are substantial, his motion to cute a new bond. Adams v. Settles, 2 Duv. (Ky.) 76; Bates v. Courtney, i Dana (Ky.) 145; Ford v. Com., 3 Dana (Ky.) 46; Walters v. Patrick) I Bush (Ky.) 223; Marnier v. Lindsey, 3 Bush (Ky.) 94- Defects in Amended Bond. Where the bond filed on the amendment is also defective from carelessness, the court will allow no further amendment, and will dismiss the appeal. Smith v. Keenam, 14 Mo. 530. Technical Errors. The court will not exercise its power to allow a technical error in an appeal bond to be corrected where the object of the appeal is to take advantage of a technical error of the appellee. Ridabock v. Levy, 8 Paige (N. Y.) 197. Alternative Obligees. A bond given on appeal from a decision in the Sur- rogate's Court to the Supreme Court to the people or the respondent in the alternative is defective, but is amend- able on a motion to dismiss. Marvin v. Marvin, n Abb. Pr. N. S. (N. Y. Ct. of App.) loo. Consent of Sureties. An appellant cannot be allowed to amend an appeal security changing the liability of the sureties without their consent. Lang- ley v. Warner, i N. Y. 606; Ramsey v. Childs, 34 Hun (N. Y.) 329. Recognizance. The statutory recog- nizance required on appeal in a crim- inal case is jurisdictional, and where defective cannot be amended. Hoi- man v. State, 10 Tex. 558. Rules of Court. Where the amount of an appeal bond and the manner of approving it are regulated by rules of court, the court may dispense with the strict letter of the rule and permit a new bond to be filed and approved on payment of costs. Eldridge v. Howell, 4 Paige (N. Y.) 459. Filing No Bond. Where no bond whatever has been filed, the appellate court has no power to allow a new bond to be filed after expiration of the time to appeal, as this would be in effect to allow a new appeal after the statute had run. Nelson v. Tenny, 113 N. Y. 616; Covell v. Mosely, 15 Mich. 514; unless an express statute allows the appellate court to supply any omission or deficiency in perfecting the appeal. State v. Coahoma County, 64 Miss. 358; Briggs v. Swales, 29 How Pr. (N. Y. Supreme Ct.) 201. Where Statute Directory. Where the statutory provision requiring the trial judge to take a bond is directory and not mandatory, he may allow ap- pellant to file new bond under such conditions as he shall impose. Martin v. Hunter, i Wheat. (U. S.) 304; Sew- ard v. Corneau, 102 U. S. 161. 1. Ramsey v. Childs, 34 Hun (N. Y.) 329; O'Sullivan v. Connors, 22 Hun (N. Y.) 137; Hardt v. Schulting, 59 How. Pr. (N. Y. Supreme Ct.) 353; Zuckerman v. Hawes, 146 111. 59. Abuse of Discretion. It is not an abuse of discretion to allow a new undertaking to be filed nunc pro tune where the justification of the sureties on the prior undertaking had been inadvertently adjourned " out of court." Hardt v. Schulting, 59 How. Pr. (N. Y. Supreme Ct.) 353. Where the appellant is ruled to give an appeal bond and proffers sureties which he deems sufficient, it will be considered an abuse of discretion to refuse permission to substitute other sureties if those proffered prove insuffi- cient. Zuckerman v. Hawes, 146 111. 59. 2. Chateaugay Ore, etc., Co. v. Blake, 35 Fed. Rep. 804; Putnam v. Boyer, 140 Mass. 237; Acker v. Alex- andria, etc., R. Co., 84 Va. 650. 3. Chateaugay Ore, etc., Co. v. Blake, 35 Fed. Rep. 804; Acker v. Alex- andria, etc., R. Co., 84 Va. 650; James v. Roberts, 78 Tex. 670; Richardson v. Richardson, 83 Mich. 653; Corey v. Lugar, 62 Ind. 60. Where there is any doubt of the bond offered furnishing the full pro- tection contemplated by the statute, it is the duty of the court to require a new one to be filed. Kirby v. Collins, 5 Wash. 682. 996 Amendment. APPEAL BONDS. Motion to Amend. dismiss must be granted unless a proper amendment is made. 1 5. Motion to Amend a. WHERE MADE. The motion to amend must be made in the court to which the appeal is taken, 2 as it is incident to the appeal, which has passed out of the jurisdiction of the trial court by filing the bond. 3 b. TIME OF MOTION. The motion for leave to amend should properly be made before the motion of the appellee to dismiss for the irregularity comes on for hearing. 4 The application The Test Whether Recovery May Be Had on the bond actually given is not final. The appellee is entitled to an entirely regular bond. James v. Rob- erts, 78 Tex. 670; Richardson v. Rich- ardson, 83 Mich. 653; Corey w..Lugar, 62 Ind. 60. But a bond upon which recovery may be had in the statutory amount will support the appeal and justify denial of a motion to dismiss. Pleasants v. Botts, 5 Martin, N. S. (La.) 128. Trivial Errors. In many cases it is held that trivial and harmless errors may be disregarded by the appellate court and will not sustain a motion to dismiss or to compel the appellant to amend. Carmichael v. Holloway, 9 Ind. 519; McCall v. Trevor, 4 Blackf. (Ind.) 496; McCrory v. Anderson, 103 Ind. 12; Taylor v. State, 16 Tex. App. 514; Kinsborough v. Pitts, 63 Ga. 496; Holly v. Perry, 94 N. Car. 30; Asch v. Wiley, 16 Neb. 41. Defective Acknowledgment. Where only a simple acknowledgment for costs is required, if the security is suf- ficient for the costs of the appeal, it will not be invalidated by a failure to name all the appellants in the acknowl- edgment of the sureties. Crump v. Wallace, 27 Ala. 280. Unnecessary Details. A condition substantially conforming to the stat- ute is not invalidated by a long recital of unnecessary details and irrelevant facts. Ex p. Weissinger, 7. Ala. 710. Surplusage. The following of the statement of damages and costs in the appeal bond by the word "and" no further sum being mentioned held immaterial. Guezz/. Dupuis, 152 Mass. 454- 1. Putnam v. Boyer, 140 Mass. 237. 2. O'Sullivan v. Connors, 22 Hun {N. Y.) 137; Falk v. Goldberg, 45 Wis. 94 ; Pulte v. Wayne Circuit Judge, 47 Mich. 646; Parker v. Murray, 109 N. Y. 646. 3. O'Sullivan v. Connors, 22 Hun (N. Y.) 137. Motion by Surety. The motion to amend the undertaking may be prop- erly made by a surety thereto. O'Sul- livan v. Connors, 22 Hun (N. Y.) 137. Amendment of Bond in Lower Court. But an appellate court has no discre- tionary power except by statute to allow amendments to bonds filed to eftect an appeal to an inferior tribunal. Gillilan v. Gray, 13 111. 705. 4. Cross v. Chichester, 4 Oregon 114; State v. McKinsmore, 8 Oregon 207; Robeson v. Lewis, 64 N. Car. 738. Practice. The motion should be on notice to the adverse party, and the applicant should set up the facts upon which he bases his application for re- lief by affidavit. Rauschauft v. Car- penter, 63 Ind. 359. Where statutes do not mandatorily require amendment appellant should show a good excuse and a diligent en- deavor to comply with the statute. De Lashmutt v. Sellwood, 10 Oregon 51; State -v. McKinsmore, 8 Oregon 207. Where the appellant has been guilty of gross negligence the mo- tion will be denied. Parker v. McCunn, 9 N. Y. Wkly. Dig. 245. But where an appeal has been taken in good faith it is error to re- fuse leave to amend a defective ap- peal bond where leave is seasonably asked. Territory v. Milroy, 7 Mont. 560; Pierse v. Miles, 5 Mont. 549; Cunningham v. Hopkins, 8 Colo. 33. Order. Where under a statute par- ties are permitted to file a new bond through which the rights of parties adversely interested but to whom the former bond was not made, may be affected, the order allowing the filing should require notice to be given to such parties. First Nat. Bank v. Pres- ion Nat. Bank, 85 Tex. 560. The court may attach to the order granting leave to amend a further or- der of dismissal in case the terms of amendment are not complied with. Robare v. Kendall, 22 Neb. 680. 997 Amendment. APPEAL BONDS. Common-law Bond. should strictly be accompanied by the tender of a proper bond, duly executed, with sufficient surety; 1 but an offer to file a proper bond within the time ordered by the court is ordinarily sufficient,* and if a proper bond be actually tendered and filed before the motion to dismiss is granted the court will ordinarily deny it. 3 6. Common-law Bond. An appeal bond is not necessarily void because invalid as a statutory obligation. 4 Where it contains the 1. Richardson v. Howk, 45 Ind. 451; Scotten v. Divelbiss, 46 Ind. 301. 2. Adams v. Law, 16 How. (U. S.) 148; Anson v. Blue Ridge R. Co., 23 How. (U. S.) i; Brobst v. Brobst, 2 Wall. (U. S.) 96; Catlett v. Brodie, 9 Wheat. (U. S.) 555; Been v. Hemp- hill, Hempst. (U. S.) 154; Seymour v. Freer, 5 Wall. (U. S.) 822; The Dos Hermanos, 10 Wheat. (U. S.) 311; Swasey v. Adair, 83 Cal. 136; Murphy v. Consolidated Tank Line Co., 32 111. App. 614; Thomas v. Georgia R., etc., Co., 38 Ga. 222. 3. Missouri. State v. Thompson, 81 Mo. 163; Bagley v. Kelly, 38 Mo. App. 623; Jones v. Davis, 4 Mo. 28; Will- iams v. Watson, 34 Mo. 95; Hamilton v. Jeffries, 15 Mo. 617; sec. 3053 Rev. Sts. Mo. 1879. United States. Davidson v. Lanier, 4 Wall. (U. S.) 447; Edmondson; v. Bloomshire, 7 Wall. (U. S.) 306 Shepherd v. Pepper, 133 U. S. 626; Brobst -u. Brobst, 2 Wall. (U. S.) 96. New York. Potter v. Baker, 4 Paige (N. Y.) 290; Van Slyke v. Schmeck, 10 Paige (N. Y.) 301. Wisconsin. Russell v. Bartlett, 9 Wis. 556; Helden v. Helden, 9 Wis. 557- Other States. Beebe v. Young, 13 Mich. 221; O'Dea v. Washington Co., 3 Neb. 122; State v. Richards, 77 Ind. 101. In Murphy v. Steele, 51 Ind. 81, it was held erroneous to grant a motion to dismiss an appeal where the appel- lant filed a good and sufficient bond pending the motion to dismiss; and to the same effect, see Cunningham v. Hopkins, 8 Cal. 33. Discretion of Court in Fixing Time. The court granting the motion to amend may, by an exercise of reason- able discretion, fix the time within which to amend. Weist v. People, 39 111. 507; Stilleyz/. King, 3 111. App. 338. Allowing Bond to be Filed after Dis- missal Discretionary. Where the appeal has been dismissed for insufficiency it is discretionary with the court to set aside the dismissal and allow a new appeal bond to be filed. Smith v. Davis, 89 111. 203. In Colorado and Illinois. The court will not dismiss an appeal on motion for an insufficient appeal bond al- though the appellant does not ask leave to file a new one; but a rule will be made making the dismissal absolute on the appellant's failure to file a new or amended bond within a reasonable time named in the rule. Schofield v. Felt, 10 Colo. 146; Wears'. Killeen, 38 111. 259. And in Georgia it is held that an ap- peal should not- be dismissed for in- sufficient surety until the appellant has been required to give other secu- rity or show cause why the appeal should not be dismissed. Thomas v. Georgia R., etc., Co., 38 Ga. 222. 4. Pray v. Wasdell, 146 Mass. 327; Meserve v. Clark, 115 111. 580; Mix v. People, 86 111. 329; George v. Bischoff, 68 111. 236; Field v. Schricher, 14 Iowa 119; Park v. State, 4 Ga. 329. Consideration. The expenses in- curred by appellee in defending the appeal on the faith of the bond afford a sufficient consideration to sustain it as a valid contract. Meserve v. Clark, 115 111. 580; George v. Bischoff, 68 111. 236 ; Reilly v. Atchinson (Arizona, 1893), 32 Pac. Rep. 262; Seacord v. Morgan, 17 How. Pr. (N. Y. Supreme Ct.) 394 . The effect given by the statute to an appeal bond or undertaking is a sufficient consideration therefor. Post v. Doremus, 60 N. Y. 371. But where containing obligations in excess of the requirement of statute, and not based on any order of court or independent considerations ex- pressed therein or shown to exist by parol, it is void as a nudum pactuti- Post v. Doremus, 60 N. Y. 371.' Thompson -v. Blanchard, 3 N. Y. 335, Doolittle v. Dininny, 31 N. Y. 350; 99 8 Appeals in Forma Pauperis. APPEAL BONDS. Appeals in Forma Pauperis. essential elements of a good contract it will bind the obligors, 1 unless the statute declares that none other than the statutory appeal bond shall be given* or the bond contravenes public pol- icy. 3 In other cases the appellee may ratify an appeal bond sub- stantially varying from the statute by enforcing it as a common- law contract for his benefit. 4 XIV. APPEALS IN FOBMA PAUPEKIS. The fact that appellant is a pauper does not of itself relieve him from the necessity of giving an appeal bond. 5 There must be express statutory authority for an appeal in forma pauperis. Eequisites of Affidavit. To avail himself of an appeal in forma pauperis the appellant must file an affidavit in strict conformity to the statute. 7 The affidavit must set out all the facts making Seaman v. McReynolds, 50 How. Pr. (N. Y. Super. Ct.) 425. Where a legitimate statutory pur- pose appears to have been intended, it will not be presumed that the parties voluntarily made a common-law bond. Mathews v. Morrison, 13 R. I. 309. Where an appeal bond is given, not in pursuance of an agreement between the parties, but to secure a statutory privilege which is not gained by it, it is void as without consideration. Powers -u. Chabot, 93 Cal. 266; Powers v. Crane, 67 Cal. 65. Variance from Statute. The fact that none of the conditions are directed by the court or statute does not affect its validity as a common-law obliga- tion. Mix v. People, 86 111. 329. 1. Meserve v. Clark, 115 111. 580 ; George v. Bischoff, 68 111. 236; Smith v. Whitaker, n 111. 417; Pritchett v. Peo- ple, 6 111. 525; Higgins v. Parker, 48 111. 445; Courson v. Browning, 78 111. 208; Fournier z'.Faggott, 4 111. 347; Youngz/. Mason, 8 111. 55; Turner v. Armstrong, 9 111. App. 24; Miner v. Rodgers, 65 Mich. 225; Healey v. Newton, 96 Mich. 228; Goodwin v. Bunzl, 102 N. Y. 224; Cook v. Freudenthal, 80 N. Y. 202; Decker v. Judson, 16 N. Y. 439; Nunn v. Goodlet, 10 Ark. 89; Dennard v. State, 2Ga. 137; Farnham v. Morrison, 2 Ld. Raym. 1138; Johnson v. Lasere, 2 Ld. Raym. 1458; Edgecomb v. Dee, Vaughan 102; Saterlee v. Stevens, n Ohio 420; Pray v. Wasdell, 146 Mass. 327; Morse v. Hodson, 5 Mass. 314; Sweetser v. Hay, 2 Gray (Mass.) 49; Bank of Brighton v. Smith, 5 Allen (Mass.) 413; Conant v. Newton, 126 Mass. 105; U. S. v. Linn, 15 Pet. (U. S.) 290; Cunningham v. Jacobs, 120 Ind. 306; Sheppard v. Collins, 12 Iowa 570; Williams v. Coleman, 49 Mo. 325; Barnes v. Webster, 16 Mo. 258, 57 Am. Dec. 252; Baker v. Washington County, 53 Ind. 497 ; Whitsett v. Womack, 8 Ala. 475; Sewall v. Frank- lin, 2 Port. (Ala.) 493. 2. Sheppard v. Collins, 12 Iowa 573; Pray v. Wasdell, 146 Mass. 327; Reitan v. Goebel, 35 Minn. 384; Sturgis v. Rogers, 26 Ind. i; Whitsett v. Wo- mack, 8 Ala. 476. 3. Pray v. Wasdell, 146 Mass. 327. It has been held that where statutes expressly provide that bonds taken in a manner different from that therein prescribed shall be void, the prohibi- tion does not invalidate bonds valid at common law unless taken under color of office or under pretence of author- ity. Sheppard v. Collins, 12 Iowa 574; Burrall v. Acker, 23 Wend. (N. Y.) 606. 4. Bartlett's Appeal, 82 Me. 210 ; Tuck v. Moses, 54 Me. 115; Holbrook v. Klenert, 113 Mass. 268. 5. Whittaker v. Kershaw, 44 Ch. Div. 296; Green v. Castello, 35 Mo. App. 127; Butler v. Jarvis, 117 N. Y. 115: Halloran v. Texas, etc., R. Co., 40 Tex. 465. 6. Fite -v. Black, 85 Ga. 413. 7. Holmes v. Mclntyre, 61 Tex. 9; Perry v. Scott, 68 Tex. 208; Golightly v. Irvine (Tex. App., 1890), 15 S. W. Rep. 48; Perry v. Scott, 68 Tex. 208; State v. Duncan, 107 N. Car. 818; Gib- bons v. McComb, 3 Ga. 252; Hearnez/. Prendergast, 61 Tex. 627; Halloran v. Texas, etc., R. Co., 40 Tex. 465. Who May Take Affidavit. And so an affidavit on appeal in forma pauperis cannot be taken before any other than the designated officer. Davis v. Dyer. 5 Sneed (Tenn.) 679. 999 Waiver of Defects APPEAL BONDS. by Appellee. a case within the statute, 1 and must identify the judgment with like certainty required of an appeal bond. 2 It must be made by the appellant himself. XV. WAIVER OF DEFECTS BY APPELLEE. The general rule, that all technical steps in appellate procedure pertaining merely to bringing up the case may be waived, applies to the statutory requirements of appeal bonds. 3 They are ordinarily held intended purely for the appellee's benefit, 4 consequently he may waive all security whatever. 5 1. Elder v. Whithead, 25 Ga. 262; State v. Duncan, 107 N. Car. 818; Go- lightly -v. Irvine (Tex. App., 1890), 15 S. W. Rep. 48. Allegations. So where the statute requires that an appellant in forma pauperis shall have certain qualifica- tions, the allegation, in the affidavit, of each such qualification is jurisdic- tional, and the appeal will be dis- missed on motion where any one of them is wanting. Golightly v. Irvine, (Tex. App., 1890), 15 S. W. Rep. 48; State v. Shoulders, in N. Car. 637; State v. Wylde, no N. Car. 500; State v. Tow, 103 N. Car. 350; State v. Divine, 69 N. Car. 390; State v. Mor- gan, 77 N. Car. 510; State v. Moore, 93 N. Car. 500; State v. Payne, 93 N. Car. 612; State v. Jones, 93 N. Car. 617; State v. Duncan, 107 N. Car. 818. An affidavit on appeal in forma pau- peris that appellant is " unable to pay the costs " is an insufficient compliance with a statute requiring him to make oath that he "is unable to pay the costs of appeal or give security there- for." Golightly v. Irvine (Tex. App., 1890), 15 S. W. Rep. 48. An affidavit alleging that appellant is "unable to give security," without alleging that it is because of his pov- erty, is insufficient. Gibbons v. Mc- Comb, 3 Ga. 252. 2. Perry v. Scott, 68 Tex. 208; Holmes v. Mclntyre, 61 Tex. 9. Time for Filing. As the affidavit takes the place of an appeal bond, the court has no power to allow an exten- sion of the time within which it may be filed without express authority. Stell v. Barham, 85 N. Car. 88; Leach v. Jones, 86 N. Car. 404; State v. Moore, 93 N. Car. 500; Warren v. Harvey, 92 N. Car. 137; State v. War- ren, loo N. Car. 489. Amendment to Show Appeal in Forma Pauperis. Where a motion is made to dismiss an appeal for lack of suf- ficient security, it may be amended where the appellant can on sufficient affidavit show the necessary qualifica- tion to an appeal in forma pauperis. Burkhalter v. Bullock, 18 Ga. 371; Sample v. Gary, 19 Ga. 573. Not Traversable. The affidavit on ap- appeal in forma pauperis is not trav- ersable. Hines v. Rosser, 27 Ga. 85. A Municipal Corporation may enter an appeal in forma pauperis. Savannah v. Brown, 64 Ga. 229. Joint Appeal by Husband and Wife. In McPhatridge v. Gregg, 4 Coldw. (Tenn.) 324, it was held that where husband and wife are joint parties it is necessary only for the husband to take the oath of poverty on joint ap- appeal in forma pauperis. 3. Thompson v. Lea, 28 Ala. 454; Martin v. Higgins, 23 Ala. 775; Moore v. Fiquett, 19 Ala. 318; Merrill v. Jones, 8 Port. (Ala.) 554; Wyatt v. Judge, 7 Port. (Ala.) 37; Ives v. Finch, 22 Conn. 101; State v. State, 12 Pet. (U. S.) 720; Bostwick v. Perkins, 4 Ga. 50; Holbrook v. Klenert, 113 Mass. 268; Tuck v. Moses, 54 Me. 115; Greely v . Currier, 39 Me. 516; Hall v. Monroe, 73 Me. 123. 4. Dore v. Covey, 13 Cal. 508; Wild- man v. Rider, 23 Conn. 175; Jones v. Droneberger, 23 Ind. 74. Costs of Court But where the appeal bond covers costs of court it cannot in any event be waived. Cape Fear, etc., Nav. Co. v. Costen, 63 N. Car. 264. 5. Jester v. Hopper, 13 Ark. 43; Wilson v. Dean, 10 Ark. 308; Thomp- son v. Lea, 28 Ala. 454; Ross v. Ted- der, 10 Ga. 426; Howard v. Harman, 5 Cal. 79; Coulter v. Stark, 7 Cal. 245; Forni v. Yodell, 95 Cal. 442; Newman "j, Maldonado (Cal., 1892), 30 Pac. Rep. 833; Billings v. Roadhouse, 5 Cal. 71; Pedrick v. Post, 85 Ind. 255; West v. Gavins, 74 Ind. 265. Contra. In Massachusetts and Indi- ana it is held that the provision of law requiring an appeal bond is not wholly intended for the appellee's 1000 Waiver of Defects APPEAL BONDS. by Appellee. What Amounts to Waiver. A general appearance, as by joinder in error in an or agreement to submit the cause on briefs or oral arguments, is a sufficient waiver. 1 benefit, but partly on the ground of public policy, to discourage frivolous and vexatious litigation. Parties can- not therefore waive all appeal security, since it would be equivalent to confer- ring jurisdiction by consent. Santom v. Ballard, 133 Mass. 464; Folsom v. Cornell, 150 Mass. 121 ; Henderson v. Benson, 141 Mass. 218; Putnam v. Boyer, 140 Mass. 235; Ten Brook v. Maxwell, 5 Ind. App. 353. Nor in Massachusetts can the require- ment of the law that a bond shall have a surety be waived. Henderson v. Benson, 141 Mass. 219. And the objection may be taken any time be- fore judgment is rendered on appeal, as it goes to the jurisdiction. Hender- son v. Benson, 141 Mass. 219; Santom v. Ballard, 133 Mass. 464; Keene v. White, 136 Mass. 23; Wheeler Mfg. Co. -u. Burlingham, 137 Mass. 581. But other defects may be waived. Folsom v. Cornell, 150 Mass. 120; Wheeler Mfg. Co. v. Burlingham, 137 Mass. 581. Special Proceeding. Where, in a special proceeding, the statute makes the right of the appellate tribunal not strictly judicial in its character de- pend on certain acts, they must be strictly complied with. State v. Fitch, 30 Minn. 532. As, where an appeal was taken to a justice of the peace from the denial by county commissioners of a petition to lay out a highway, it was held that the appeal bond with sureties as re- quired by statute could not be waived. State v. Fitch, 30 Minn. 532; Riley v. Mitchell, 38 Minn. 13. 1. Thompson v. Lea, 28 Ala. 453; Kirkpatrick v. Cooper, 89 Me. 210; Cothren v. Connaughton, 24 Wis. 134; Blake v. Lyon Mfg. Co., 75 N. Y. 611; Yancey v. Greenlee, 90 N. Car. 317; Dillingham v. Skein, Hempst. (U. S.) 181; Hillz/. Burk,62N. Y. in; Teall v. Van Wyck, 10 Barb. (N. Y.) 376; Acker v. Alexandria, etc., R. Co., 84 Va. 650; Chicago, etc., R. Co. v. Abilene Town Site Co., 42 Kan. 104; Critchell v. Brown. 72 Ind. 539; Burdine v. Mustin, 33 Ala. 634; Myers v. Segars, 41 Ala. 385; Carter v. Thompson, 41 Ala. 375; Magruder v. Campbell, 40 Ala. 6n; Alexander v. Nelson, 42 Ala. 462; Bryan v. Berry, 8 Cal. 130; Win- ona Paper Co. v. First Nat. Bank, 33 111. App. 630; Martin v. Hochstadter, 27 111. App. 166; Evans v. Pigg, 28 Tex. 586; Wheeler Mfg. Co. v. Bur- lingham, 137 Mass. 581; Simonds v. Parker, i Met. (Mass.) 508; Kittridge v. Bancroft, i Met. (Mass.) 514; Clark v. Connecticut R. Co., 6 Gray (Mass.) 363; O'Loughlin v. Bird, 128 Mass. 600; Norris v. Munroe, 128 Mass. 386; Gruber v. Washington, etc., R. Co., 92 N. Car. i; Hancock v. Bramlett, 85 N. Car. 393; Harshaw v. McDowell, 89 N. Car. 181; McMillan v. Nye, 90 N. Car. n. Unless the case be such that the Supreme Court cannot take juris- diction of the appeal. Johnston v. Fort, 30 Ala. 78; Parish v. Galloway, 34 Ala. 163; Mabry v. Dickens, 31 Ala. 243- Special Appearance. But an appear- ance for the special purpose of object- ing to the jurisdiction constitutes no waiver. Bubb v. Cain, 37 Kan. 692. Acceptance. The acceptance and ap- proval of an appeal bond by appellee is a waiver of any defects therein. So, where the appellee consents to a dif- ferent form of security than that des- ignated by the court or statute, he can- not object that it is insufficient. Jones v. Potter, 89 N. Car. 220; Greenlee v. McCalvey, 92 N. Car. 530; Buchanan v. Mulligan, 125 Ind. 334; Norris v. Munroe, 128 Mass. 386. Statements of the Case. A statement in the case on appeal settled by the judge, that "bond was given" or " filed " or "approved," is construed as indicating a tender and acceptance of the bond in open court by the appellee and a waiver of all objections thereto. Hancock v. Bramlett, 85 N. Car. 393; Gruber v. Washington, etc., R. Co., 92 N. Car. i; Harshaw v. McDowell, 89 N. Car. 181; Singer Mfg. Co. v. Barrett, 94 N. Car. 219. Objections Must Be Timely. It is a general rule, applicable to all objec- tions to appellate proceedings on ac- count of errors in the technical mode of bringing up the case, that they should be made at the earliest possi- ble moment. Thus, where the appel- lee failed to object to deficiencies in the appeal bond until a whole term 1001 Motion to Dismiss. APPEAL BONDS. The Sureties. XVI. MOTION TO DISMISS. An appellant is estopped from moving for dismissal on the ground of defects in his own appeal bond. Where moved for by the appellee, the defects complained of must be specifically pointed out in the motion or they will be deemed waived. 1 XVII. THE SURETIES 1. Qualifications A Necessary Party to the appellate proceeding cannot act as surety on an appeal bond iiiven therein.* had intervened, his objection was held too late. Wallace v. Corbitt, 4 Ired. (N. Car.) 45; Arrington v. Smith, 4 Ired. (N. Car.) 59; McDowell v. Bradley, 8 Ired. (N. Car.) 92; Robinson v. Bryan, 12 Ired. (N. Car.) 183; McMillan v. Davis, 7 Jones (N. Car.) 218; Council v. Monroe, 7 Jones (N. Car.) 396; March v. Griffith, 8 Jones (N. Car.) 264; Howze v, Green, Phil. Eq. (N. Car.) 250; Hutchinson v. Rumfelt, 82 N. Car. 425; Jenkins v. Cockerbaum, I Ired. (N. Car.) 309; Torrence v. Gra- ham, I Dev. & B. (N. Car.) 284. 1. Scranton v. Bell, 35 Tex. 413; Jester v. Hopper, 13 Ark. 48; Healy v, Seward, 5 Wash. 319; Cason v. Laney, 82 Tex. 317; Casey v. Peebles, 13 Neb. 9; Bazzo v. Wallace, 16 Neb. 290. Rehearing. Where an appeal has been dismissed for failure to prosecute, and a motion to reinstate is opposed on account of defects in the appeal bond, it is too late to offer to file a new bond on petition for rehearing. Tevis v, O'Connell, 21 Cal. 512. Retainer. Where on appeal the plaintiff's attorney served a general notice of retainer on the appellant under the mistaken notion that an un- dertaking had been filed, it was held, on motion to dismiss, that the retainer might be withdrawn and cancelled, and that appellee, having relied upon the waiver, might be permitted to file an undertaking without costs to either party. Schaffer v. Jones (Buffalo Super. Ct.), 20 N. Y. Supp. 531. Bond to be Filed. In Cunningham v. Hopkins, S Cal. 34, the refusal of a County Court to permit a bond to be filed in that court on appeal from a judgment of a justice of peace was held sufficient ground to reverse the judgment. Estoppel in Suit on Bond. A defect which would warrant a dismissal of the appeal if properly objected to con- stitutes no defenseJn a suit on the bond to enforce the obligation, since the ap- pellant and his sureties are estopped from raising it. Trueblood v. Knox, 73 Ind. 310; Deardorff v. Ulmer, 34 Ind. 353; Cunningham v. Jacobs, 120 Ind. 306; Peelle v. State, 118 Ind. 512; Sam- mons v. Newman, 27 Ind. 508; Har- baugh v. Albertson, 102 Ind. 69; Gray v. State, 78 Ind. 68, 41 Am. Rep. 545; Bugle v, Myers, 59 Ind. 73; Lucas v. Shepherd, 16 Ind. 368; Carver v. Car- ver, 77 Ind. 498; Stevenson v. Miller, 2 Litt. (Ky.) 306. 2. Hudson v. Gray, 58 Miss. 591; Barrow v. Clack, 45 La. Ann. 478; State v. New Orleans, 2 Rob. (La. ) 449; Lafon v. Lafon, 2 Martin, N. S. (La.) 571; Syme v. Badger, 91 N. Car. 272; Labadie v. Dean, 47 Tex. 90^ Nichols v. MacLean, 98 N. Y. 458; Grimwood v. Wilson, 31 Hun (N. Y.) 216; Morse v. Hasbrouck, 63 How. Pr. (N. Y. Supreme Ct.)84. Representative Party. A party sued in a representative capacity cannot be surety on his own bond in a private capacity. State v. New Orleans, 2 Rob. (La.) 449; Lafon v. Lafon, Martin N. S. (La.) 571. Official. A clerk of court is compe- tent surety on bond taken in his own court. Russell v. Sprigg, 10 La. 423. The official designated to approve the bond cannot become surety thereon. Jourdan v. Chandler, 37 Tex. 55. Party Not Materially Interested. Where it appears by the record that a-party is not materially interested in the result of the appeal, his suretyship is valid. Syme v. Badger, 91 N. Car. 272. And see Leffel v. Obenchain, 90 Ind. 50. A Husband is a competent surety for a wife sued on a debt for which she is alone liable, although a nominal party. Shiff v. Wilson, 3 Martin, N. S. (La. i g'i. Party as Agent for Real Appellant. A litigant who is a party to the suit only in his capacity as agent for the real appellant is a competent surety. Montan v. Whitley, 12 La. Ann. 175. A Partnership Firm may become sure- ties on an appeal bond. Boney v. Waterhouse, 35 Tex. 178. But a part- ner has no authority to sign a firm- Contract of Suretyship. APPEAL BONDS. Qualifications. Statutory Qualifications. A surety should be a citizen of the state where the suit is brought, and should possess the qualifications required by statute. 1 The Acceptance of a Surety as pecuniarily sufficient rests in the rea- sonable discretion of the court pr officer designated to approve the bond. 2 name as surety, and unless specially authorized by the firm the signature does not bind them. Charman v. Warner, I Oregon 339. Effect of Disqualification of Surety. The disqualification of a surety does not wholly nullify the bond. It con- fers jurisdiction for the purpose of amendment, or it may be waived by appellee. McClelland v. Allison, 3 Kan. 155. And in Texas it is held that the fact that a party to the action signed the bond as a surety is not a sufficient ground for dismissing the appeal, the bond having been approved by the* court below. Voss v. Feurmann (Tex. Civ. App., 1893), 23 S. W. Rep. 936. Surety Companies. Where a surety company has unquestionable power by its charter to act as surety on bonds, it may in the discretion of the approving power be accepted as surety on an ap- peal bond. Black v. Black. 53 Fed. Rep. 985; Cramers. Tittle, 72 Cal. 12; Hurd v. Hannibal, etc., R. Co., 33 Hun (N. Y.) 109; Earle v. Earle, 49 N. Y. Super. Ct. 57; Travis v. Travis, 48 Hun. (N. Y.) 343; McGean v. McKellar, 67 How. Pr. (N. Y.)2 73 . Where a corporation acts as sole surety it must, when excepted to, show bona-f.de surplus assets at least equal to the undertaking. Fox v. Hale, etc., Silver Min. Co., 97 Cal. 353. But a bond with such surety will not be approved where there is reason to question the power of the company to bind itself by such an obligation. Black v. Black, 53 Fed. Rep. 985. Acceptance of Surety Company. A surety company capitalized at an amount much less than the undertak- ing is not acceptable as a surety, al- though its individual stockholders are liable for its debt and are amply able to discharge any liability arising on the undertaking. Fox v. Hale, etc.. Sil- ver Min. Co., 97 Cal. 353. An undertaking, executed by a for- eign surety company, and signed in its behalf by its second vice-president and assistant secretary, with the seal of the corporation affixed, will not be de- clared void s as not being properly signed, where there is nothing to show that such officers were not authorized to sign and deliver it. Gutzeil v. Pennie, 95 Cal. 598. A surety company sustaining an av- erage loss of 12 j percent of the premi- ums paid in was accepted as sufficient, although its total capital was but 5 Vof the amount of its liabilities on bonds. Rosenwald v. Phoenix Ins. Co. (Su- preme Ct.), 9 N. Y. Civ. Pro. Rep. 444. Such corporation need not show the personal qualification of sureties, al- though it must justify in like manner. Its acceptance is discretionary with the judge. Earle v. Earle, 49 N. Y. Super. Ct. 57- 1. Ulrich v. Farrington Mfg. Co., 69 Wis. 214; Smith v. Chicago, etc., R. Co., 19 Wis. 89; Bonesteel v. Orvis, 20 Wis. 646; Bonell v. Easterly, 30 Wis. 553; Barrow z>. Clack, 45 La. Ann. 478; Snedicor v. Barnett, 9 Ala. 434; Bush- ong ^.Graham, 4 Ohio Cir. Ct. Rep. 138. Need Not be Residents of County. But not of county where venue is laid, un- less statute so requires. Bushong v. Graham, 40 Ohio Cir. Ct. Rep. 138. Affidavit of Worth. Where surety must make affidavit of his pecuniary condition by statute, the affidavit must accompany the bond to validate it. Bailey v. Rutjes, 91 N. Car. 420; State v. Wagner, 91 N. Car. 521; Turner v. Quinn, 91 N. Car. 92; Anthony v. Car- ter, 91 N. Car. 229; Bryson v. Lucas, 85 N. Car. 397; Holcomb v. Teal, 4 Oregon 352; Alberson v. Mahaffey, 6 Oregon 412; State v. McKinmore, 8 Oregon 207; Pencinse v. Burton, 9 Oregon 178. Such affidavit must be made by the surety in person, or it will be void. Morphew v. Tatem, 89 N. Car. 183. Where a statutory provision requires an undertaking to be accompanied by an affidavit of sureties that they are worth an amount defined, the affidavits are sufficient although they exceed the same. Hill v. Burk, 62 N. Y. in: Ex p. Eastabrook, 5 Cow. (N. Y.) 27; Gib- bons?'. Bernard, 3 Bosw. (N. Y.) 635. 2. Williams v. Claflin, 103 U. S. 753. See XVII. 5. Review of Approval, infra. 1003 Contract of Suretyship. APPEAL BONDS. Number of Sureties. Pecuniary Eesponsibility. A surety is sufficient who in all reasonable probability will be pecuniarily responsible for the amount of the bond. 1 Attorney as Surety. Where duly excepted to, an attorney was not good bail in error at common law. 2 Where the statute expressly disqualifies him as surety a bond signed by him is fatally defec- tive. 3 But the disqualification at common law or by rule of court does not avoid the appeal bond, 4 although the attorney may be liable for contempt of court in disobeying the rule. 5 2. Sureties on Bond in Suit. Where a judgment is rendered on a bond against a principal and his sureties thereon, the sureties be- come parties to the judgment, and on appeal therefrom they can- not again act as sureties on the appeal bond. 6 It is otherwise where the judgment is rendered only against the principal. 7 3. Number of Sureties. A statute requiring "sureties" on an appeal bond impliedly requires more than one. 8 Where two sureties are required, an appeal bond with one only is defec- tive on a motion to dismiss unless the defect is amended or waived. 9 1. Zuckerman v. Hawes, 146 111. 59; Rosenwald v. Phoenix Ins. Co., 9 Civ. Pro. Rep. (N. Y. Supreme Ct.) 444; Black v. Black, 53 Fed. Rep. 985. A surety on an appeal bond cannot be rejected because of incumbrances on his real property when his resid- uary interest in it is so large as to amply secure his liability on the bond Zuckerman v. Hawes, 146 111. 59. When Surety Incompetent. A surety is not competent against whom execu- tions have been issued and returned unsatisfied. Squier v. Stockton, 5 La. Ann. 741. Real Estate. A surety required by statute to prove his solvency must show the possession of real estate. State v. Rightor, 36 La. Ann. 711. 2. Studwell v. Palmer, 3 Paige (N. Y.) 57- 3. Ohio, etc., R. Co. v. Hardy, 64 Ind. 454. 4. Ohio, etc., R. Co. v. Hardy, 64 Ind. 454; State v. Costello, 61 Conn. 497; Banter v. Levi, I Chit. Rep. 713, 18 E. C. L. 212; Harper v. Tahourdin, 6 M. & S. 383; Shugar v. Muniford, I Pa. Dist. Ct. Rep. 324. But it was not ground for a motion to quash the writ of error. Studwell v. Palmer, 5 Paige (N. Y.) 57. 5. Ohio, etc., R. Co. v. Hardy, 64 Ind. 454. Surety as Party. A surety is not such a party to the suit that he must be consulted in regard to any step taken in the case before final judgment. Bailey v. Rosenthal, 56 Mo. 385. 6. Davis v. McCampbell, 37 Ala. 609; Eufaula Home Ins. Co. v. Plant, 36 Ga. 623; French v. Davidson, 32 La. Ann. 718; Bowman v. Kaufman, 30 La. Ann. 1021. 7. Sampson v. Solinsky, 75 Tex. 664; Trammel! v. Trammell, 15 Tex. 291; Saylor v. Marx, 56 Tex. 90; Heiden- heimer v. Bledsoe, i Tex. App. 317; Word v. Reither, 2 Tex. App. Civ. Cas. 778; Witten v. Caspary (Tex., 1890), 15 S. W. Rep. 47; Mehmert v. Diet- rich, 36 La. Ann. 390; Leeds v. Yeat- man, 12 La. 383; Pasley v. McConnelL 39 La. Ann. 1097; Greiner v. Prender- gast, 2 Rob. (La.) 235; Lee v. Lord, 75 Wis. 35. Thus sureties on a bond given to secure costs of a suit may become sureties on an appeal bond given on appeal from a judgment rendered against the principal therein. Samp- son v. Solinsky, 75 Tex. 664. 8. Harris v. Register, 70 Md. 109; Riley v. Mitchell, 38 Minn, n; Blake v. Sherman, 12 Minn. 305; State v. Fitch, 30 Minn. 532; Van Wezel v. Van Wezel, 3 Paige (N. Y.) 38; Hooper v. Brinson, 10 Tex. 296. 9. Casey v. Peebles, 13 Neb. 7; Tor- rent v. Muskegon Booming Co., 2 Mich. 159; Beebe v. Young, 13 Mich. 221; Bartlett's Appeal, 82 Me. 210; Greeley v. Currier, 39 Me. 516; Hall v. Monroe, 73 Me. 123; Tuck v. Moses, 1004 Contract of Suretyship. APPEAL BONDS. Exception to Sureties. 4. Exception to Sureties Under Code Procedure. Where the appellee deems the sureties offered insufficient he must serve notice of exception to them upon the appellant within the time required by the statute, or all objections are deemed waived. 1 The sure- ties must thereupon justify before the official designated by statute, and notice of justification, as the statute requires, must be served upon the appellee. 2 The failure of the sureties on an 54 Me. 115; Van Wezel v. Van Wezel, 3 Paige (N. Y.) 38; North American Co. v. Dyett, 4 Paige (N. Y.) 38. A bond with one surety is amend- able. Riley v. Mitchell, 38 Minn. n. See XIII. AMENDMENT and XV. WAIV- ER, ante. Surety Company. Where the statute requires " sureties " a surety company is not sufficient without the addition of another surety, unless the statute expressly so provides. White v. Rin- toul, 6 Civ. Pro. Rep. (N. Y. Super. Ct.) 259; Cramer v. Tittle, 72 Cal. 12; Hurd v. Hannibal, etc., R. Co.. 67 How. Pr. (N. Y. Supreme Ct.) 516; McGean v. MacKelter, 67 How. Pr. (N. Y. Super Ct.) 273. 1. Lewis z/. Lewis, 4 Oregon 209; Culliford v. Gadd (Super. Ct.), 22 N. Y. Supp. 539; Hoffman v. Smith, 34 Hun(N. Y.)485. Perfecting the Appeal. Where the appellant fails to except to the sure- ties until the expiration of the time defined by statute for taking an ex- ception to their sufficiency, the appeal becomes perfected; and a motion to compel the sureties thereafter to sub- mit to examination of their qualifica- tion will be denied. Culliford v. Gadd (Super. Ct.), 22 N. Y. Supp. 539; State v. Judge, 13 La. 574; Callahan v. Port- land, etc., R. Co., 17 Oregon 556. Form. An objection to the form merely of the affidavit attached to an undertaking on appeal is not a good objection to the sufficiency of the sure- ties obliging them to justify. Schacht v. Odell, 52 Cal. 447. 2. Judson v. Bulen, 6 Dakota 70; Kelsey v. Campbell, 14 Abb. Pr. (N. Y. Supreme Ct.) 368; Chamberlain v. Dempsey, 22 How. Pr. (N. Y. Super. Ct.) 356; Stark v. Barrett, 15 Cal. 361. Where no notice of justification is given to the appellee, the appeal may be dismissed on motion unless the ap- pellant offers a new bond. Stack v. Barrett, 15 Cal. 361; Cummins v. Scott, 23 Cal. 526. Parol Notice. Parol notie of justifi- cation of sureties on an appeal bond is good unless written notice is expressly required by statute. Judson v. Bulen, 6 Dakota 70. Duty of Officer Taking Justification. An officer who takes justification of sureties should examine them on oath not only as to their pecuniary responsi- bility, but also as to their residence and other qualifications to become such sureties according to law and the prac- tice of the court; or he may require an affidavit of such qualifications. Ten Eick -v. Simpson, n Paige (N. Y.) 177. The Affidavit of Justification should be annexed to and filed with thebond to- enable respondent to investigate the sureties. Van Wezel v. Van Wezel, 3. Paige (N. Y.) 38. Ascertaining Sureties' Competency. Sureties, in the absence of express stat- utory provisions, should be residents and householders, or such persons as would be competent special bail at com- mon law. Van Wezel v. Van Wezel, 3. Paige (N. Y.) 38. They should be re- quired to justify in at least double the amount of the penalty on the bond. Van Wezel v. Van Wezel, 3 Paige (N. Y.) 38. Statutory Amount. Where the stat- ute requires each surety to justify in a certain amount, it is not sufficient that both together justify in twice the amount required for each ; the statute must be strictly followed. Anthony v. Carter, 91 N. Car. 229; State v. Roper, 94 N. Car. 859. Approval by Clerk or Judge. Where the bond is duly approved the sure- ties are presumed to be sufficient, and cannot be compelled to justify unless evidence is offered by appellee tend- ing to show insecurity. Petillon v. Gil- man, 86 111. 401. Judgment. Where the surety has to justify in double the amount of the judgment appealed from, the amount of the judgment must be inserted in the undertaking. Harris v. Bennett, 3 Code Rep. (N. Y.) 23. Where sureties must justify in twice the amount of judgment, it is not suffi- 1005 Contract of Suretyship. APPEAL BONDS. Exception to Sureties. appeal bond to justify, where they have been duly excepted to, does not discharge them, 1 unless the statute expressly provides that, in such case, the bond shall be void. 2 cient that they justify in twice the amount of the penalty of the bond. Orr v. Orr, 5 Cine. L. Bull. (Ohio) 711. Acceptance of Surety for Specified Part. In New Orleans Ins. Co. v. Albro Co., 112 U. S. 506, it was held within the discretion of the justice of the U. S. Cirauit Court to accept several sureties for specified parts of the entire amount of the obligation. To the same effect Clark v. Clark, 7 Paige (N. Y.)6o7. Burden of Proof. The burden of proof rests on the appellant to show the suf- ficiency of sureties. State v. Judge, 35 La. Ann. 737. Presumption from Signature. The per- son before whom the justification is taken is presumed to have the official character purported by his signature in the jurat. Chamblee v. Baker, 95 N. Car. 98. 1. Smith v. Nescatunga Town Co., 36 Kan. 758; St. Louis, etc., R. Co. v. Wilder, 17 Kan. 239; Schacht v. Odell, 52 Cal. 448; Hill v. Finnigan, 54 Cal. 311; Wittram v. Crommelin, 72 Cal. 89; Swasey v. Adair, 83 Cal. 136; McSpe- don v. Bouton, 5 Daly (N. Y.) 30; Hill v. Burke, 62 N. Y. in; Kitching v. Diehl, 40 Barb. (N. Y.) 433; Decker v. Anderson, 39 Barb. (N. Y.) 346; Gib- bons v. Berhard, 3 Bosw. (N. Y.) 635. Bond Acting as Supersedeas. Where an appeal bond is given both to perfect the appeal and to act as a supersedeas, the appeal will not be dismissed if the sureties justify in an amount sufficient for the former purpose. Dobbins v. Dollarhide, 15 Cal. 374; Hill v. Finni- gan, 54 Cal. 311; Lower v. Knox, 10 Cal. 480; Mokelumne Hill Canal Co. -v. Woodbury, 10 Cal. 188; Stark v. Bar- rett, isCal. 361. At Common Law notice of bail in error must have been given to the defendant in error or his attorney, and unless ex- cepted to within twenty days the bail was deemed allowed. 2 Tidd Pr. 1156. Where excepted to and not approved of on the justification, the defendant in error might at any time within twenty days obtain a rule for better bail. 2 TiddPr. 1157; Van Wezel v. Van Wezel, 3 Paige (N. Y.) 38. The mode of adding and justifying new bail in error is the same as on the original bail, except that new notice of justification was not required. 2 Tidd Pr. 1157. Bail who failed to justify might be stricken out of the bail-piece by order of the court; for unless this were done they might be proceeded against. Gottwald v. Tuttle, 7 Daly (N. Y.) 107. Acceptance of Sureties by Appellee. Where the appellee accepts the sureties offered, an indorsement of their justifi- cation on the undertaking is not neces- sary. Gopsill v. Decker, 4 Hun (N. Y.) 625. Effect of Failure to Justify. Where the sureties do not justify when excepted to, the judge may by ex parte order al- low the appellant to furnish additional sureties within such time as may be designated in the order or allowed by law. The proceedings adopted in add- ing new sureties are the same as on the original sureties, except that they are required to justify without a new ex- ception. Chamberlain v. Dempsey, 22 How. Pr. (N. Y. Super. Ct.) '359; Gregorys. Gregory, Barnes 74; Lewis v. Gadderrer, 5 B. & Aid. 704; Rex v. Essex, 5 T. R. 633; Jones v. Vtstris, 3 Bing. N. Cas. 677. 2. McCracken v. Los Angeles Coun- ty, 86 Cal. 74; Roush v. Van Hagen, 17 Cal. 122; Lower v. Knox, 10 Cal. 480; Manning v, Gould, 90 N. Y. 476; Gins- burg v. Kuntz (Supreme Ct.), 15 N. Y. Supp. 237; Gottwald v. Tuttle, 7 Daly (N. Y.) 107; Chamberlain v. Dempsey, 13 Abb. Pr. (N. Y. Super. Ct.) 421 ; Ke'l- sey v. Campbell, 14 Abb. Pr. (N. Y. Su- preme Ct.) 368. Where, as in New York, the statute expressly provides that the effect of the failure of the sureties to justify shall be the same as if no undertaking had been given, the defect cannot be waived; and in an action on the bond the sureties may allege their failure as a defense. Gottwald v. Tuttle, 7 Daly(N. Y.) 107; Manning v. Gould, 90 N. Y. 476. And the defect in an undertaking from the failure of the sureties to jus- tify, when duly excepted to, cannot' be amended by withdrawing the notice of exception and waiving justification. Hoffman v. Smith, 34 Hun (N. Y.)48s. In California the failure of sureties to justify after an exception has been taken to their sufficiency does not ren- 1006 Approval of Bond. APPEAL BONDS. Generally. Time. The time fixed by statute within which sureties must justify cannot be extended without express statutory authority. 1 XVIII. APPEOVAL OF BOND 1. Generally. An appeal security is valid without approval by a court or judge, unless a statute so re- quires.* Where approval is required the statute is mandatory, and the appeal bond is invalid on objection where unapproved. 3 Such der the appeal ineffectual. It merely operates to suspend the stay of pro- ceedings, and does not discharge the sureties from their liability on the un- dertaking. Schacht v. Odell, 52 Cal. 448; Hill v. Finnigan 54 Cal. 311; Wit- tram v. Crommelin, 72 Cal. 89. 1. Roush v. Van Hagen, 17 Cal. 122; McCracken v . Los Angeles County, 86 Cal. 74; Chemin v. East Portland, 19 Oregon 512. The extension of the time to justify does not extend the time within which other acts required to perfect the ap- peal must be done. Wittram v. Crom- melin, 72 Cal. 89. The Motion to Extend must be made on notice. Wheeler v. Millar, 61 How. Pr. (N. Y. Supreme Ct.) 396. Adding New Sureties. If the original sureties fail to justify, new sureties cannot be added as a matter of course unless there is time enough remaining to serve notice of addition of new sureties and of their justifying. Chamberlain v. Dempsey, 22 How. Pr. (N. Y. Super. Ct.) 359. 2. Travis v. Travis, 48 Hun (N. Y.) 343; State v. Armstrong, 5 Wash. 123; Illinois Cent. R. Co. v. Johnson, 40 111. 35- An unnecessary approval where not required by statute is an immaterial addition to the bond. Illinois Cent. R. Co. v. Johnson, 40 111. 35. Order Requiring Bond. Where an or- der requiring an appeal bond names the sureties, penalty, and time of filing, the bond filed in compliance with the order stands approved with- out further action. Illinois Cent. R. Co. v. Johnson, 40 111. 35. 3. Cockrill v, Owen, 10 Mo. 287; Sargent v. Sharp, I Mo. 601; Julian v. Rogers, 87 Mo. 229; McCloskey v. Indianapolis Mfg., etc., Union, 87 Ind. 20; Beach v. Southworth, 6 Barb. (N. Y.) 173; Van Slyke v. Schmeck, 10 Paige (N. Y.) 302. Mandamus. Where the official desig- nated refuses to approve a bond which satisfies the statute, he may be com- pelled to do so by mandamus. Robin- son v. Mhoon, 68 Miss. 712; State v. Clark, 24 Neb. 318. Certiorari. Or where it should have been approved by a trial justice, the court may bring the papers before it by certiorari and allow the bond to be filed nunc pro tune. Robinson v. Mhoon, 68 Miss. 712. New York. In New York an ordi- nary undertaking with two sureties need not be approved, but the respon- dent may except to the sureties, and where found sufficient the judge be- fore whom the justification takes place must endorse his allowance on the un- dertaking. Travis v. Travis, 48 Hun (N. Y.) 343. But where a surety com- pany is offered in place of two sureties it must be approved by the judge below. Travis v. Travis, 48 Hun (N. Y.) 343- In Texas the approval of an appeal bond by a justice of the peace on ap- peal therefrom is held directory and the bond valid as a statutory obliga- tion. Doughty v. State, 33 Tex. i; Dycbes v. State, 24 Tex. 266; Cundiff v. State, 38 Tex. 641; Taylor v. State, 16 Tex. App. 515. Waiver by Appellee. As the statu- tory provision for approval is intended purely for the appellee's benefit the failure of the appellant to secure ap- proval does not invalidate the bond as a common-law obligation where the appellee waives the defect. Jones v. Droneberger, 23 Ind. 74; Easter v. Acklemire, 81 Ind. 163; Smock v. Har- rison. 74 Ind. 348; Beach v. South- worth, 6 Barb. (N. Y.) 173. The defect may be waived. Bu- chanan v. Milligan, 125 Ind. 332. Approval Out of Court. Where a judge is designated to approve the bond, it is generally held that the approval rrfust be made in term. Ormond v. Keith, i Colo. 81; Gruner v. Moore, 6 Colo. 529; Larco v. Casaneuava, 30 Cal. 664; Alvord v. Little, 16 Fla. 158; Baars v. Creary, 23 Fla. 61. Unless the statute or the court expressly authorizes him to act in vacation. Orman v. Keith, i Colo. 81. 1007 Approval of Bond. APPEAL BONDS. How Made. a statute vests in the official designated to approve the bond a judicial, not a ministerial, power. 1 It cannot, accordingly, be delegated to any other authority than that named in the statute. 2 2. How Made. The approval required by the statute need not be expressly endorsed on the bond. 3 Where the bond is received and filed without objection by the official designated to approve it, his approval will be presumed. 4 ling, 89 111. 58; People v. Leaton, 121 111. 668; Rogers v. Paterson, 4 Paige (N. Y.)450. So where power to take an appeal bond is vested in a delegated tribunal or official, it cannot be delegated. McPhartridge v. Gregg, 4 Coldw. (Tenn.) 324 ; Ex p. Ricks, 7 Heisk. (Tenn.) 364; Bently v. Fowler, 8 Ark. 375- By Taking a Bond in Open Court in- stead of before the judge in person as required by statute does not impair its obligatory force. Com. z/. Watts, 84 Ky. 537- Commissioner Having Power of Judge. And in Hemstead v. Cargill, 46 Minn. 141, It was held that where a statute directed an appeal bond to be approved by a district judge, an approval by a court commissioner having the powers of a district judge at chambers was sufficient. 3. Sutton v. McCoy, Wright (Ohio) 95 ; Hanaw v. Bailey, 83 Mich. 24 ; Williams v. McConico, 25 Ala. 538. Statutory Directions requiring a writ- ten endorsement are construed as di- rectory merely. Taylor v. State, 16 Tex. App. 514; Asch v. Wiley, 16 Neb. 41; Woodburn v. Fleming, i Blackf. (Ind.) 4; Miller v. O'Reilly, 84 Ind. 168; Jenkins v. Emery, 22 Wyoming 58. Endorsement Nunc Pro Tune. Where a written endorsement is deemed essential it may be supplied nunc pro tune. Muller v. Humphreys (Tex., 1889), 14 S. W. Rep. 1068. 4. Asch v. Wiley, 16 Neb. 41; Wood- burn v. Fleming, i Blackf. (Ind.) 4; McCloskey v. Indianapolis Mfg., etc., Union, 87 Ind. 20; Miller v. O'Reilly, 84 Ind. 168; Lacy v. Fairman, 7 Blackf. (Ind.) 558; Ohio, etc., R. Co. v. Hardy, 64 Ind. 454; Jenkins v. Emery, 2 Wy- oming 58; Clapp v. Freeman, 16 R. I. 344; Hanaw v. Bailey, 83 Mich. 28; Hancock v. Bramlett, 85 N. Car. 395; Moring v. Little, 95 N. Car. 87; Taylor v. State, 16 Tex. App. 514; McLane v. Russell, 29 Tex. 128; David- The defect may be waived. Williams v. Coleman, 49 Mo. 325; and under United States practice the bond is valid if approved in vacation. Hudgins v. Kemp, 18 How. (U. S.) 530. By Deputy Clerk. A deputy clerk may approve a bond in the name of the clerk. Harris v. Register, 70 Md. 109. Jurisdiction to Approve Vested in a Class. Where a class of officers is designated or authorized to approve a bond, the officer who fixes its pen- alty does not thereby acquire sole jurisdiction to approve it. Emerson v. Atwater, 5 Mich. 34. Where Official Acts De Facto. Where an appeal bond is approved by one acting under color of authority, but without legal right, the Supreme Court may allow an amendment. McClin- tock v. Laing, 19 Mich. 300. 1. Abraham v. Huntington, 19 111. 403; Henderson v. Fitch, 19 111. 404; Winston v. Rivers, 4 Stew. & P. (Ala.) 279; State v. Dillon, 98 Mo. 90; Blake v. Kimball, 22 Vt. 632. 2. O'Reilly v. Edgrington, 96 U. S. 724; National Bank v. Omaha, 96 U. S. 737; Haskins v. St. Louis, etc., R. Co., 109 U. S. 106; Eustis v. Holmes, 48 Miss. 34; Parker v. Willis, 27 Miss. 766; Pickett v. Pickett, i How. (Miss.) 267; Averil v. Dickerson, I Blackf. (Ind.) 3; Crumley v. Hickman, 92 Ind. 388 ; Jones v. Droneberger, 23 Ind. 74; Shepherd v. Dodd, 15 Ind. 217; Burk v. Howard, 15 Ind. 219; McVey v. Heavenridge, 30 Ind. 100; Scotten v. Divelbiss, 46 Ind. 301; McCloskey v. Indianapolis Mfg., etc., Union, 87 Ind. 20; Buchanan v Milligan, 125 Ind. 332; Julian v. Rogers, 87 Mo. 229; Parker v. Hannibal, etc., R. Co., 44 Mo. 415; Adams v. Wilson, 10 Mo. 341; Putnam v. Boyer, 140 Mass. 235; Hardin v. Owings, I Bibb (Ky.) 214; Knight v. People, n Colo. 308; Harris v. Register. 70 Md. 109; Winona Paper Co. v. First Nat. Bank, 33 111. App. 630; Abraham v. Huntington, 19 111. 403; Bowlesville Min., etc., Co. v. Pul- 1008 Approval of Bond. APPEAL BONDS. How Shown Effect. 3. How Shown. The approval, or the acts raising a presump- tion of approval, should be properly shown by the record ;* but the actual date of approval may always be shown by parol evi- dence, although it contravenes the written endorsement. 2 4. Effect. Unless the approval of an appeal bond is made by a court it passes on only the sufficiency of the sureties and the amount of the bond. 3 Irregularities in the form of the bond are not waived by the failure of the appellee to object on the ap- proval on that ground, and may be objected to for the first time in the appellate court. 4 son v. Lainer, 4 Wall. (U. S.) 453; Littleton v. Pratt, 10 La. Ann. 487. Waiver of Approval. Any approval of an appeal bond may be waived. Easter v. Acklemire, Si Ind. 163. Approval a Question of Fact. Upon appeal from a judgment entered upon such a bond, the question whether it was approved is a question of fact, not of law; and the finding of the trial court that it was in fact approved will be sustained if there is any evidence in the record tending to show it. Mc- Closkey v. Indianapolis Mfg., etc., Union, 87 Ind. 20. 1. Woodburn v. Fleming, i Blackf. (Ind.) 4; Humble v. Williams, 4 Blackf. (Ind.) 473; Littell v. Brad- ford, 8 Blackf. (Ind.) 185; Frazer v. Smith, 6 Blackf. (Ind.) 210; Miller v. O'Reilly, 84 Ind. 168; McCrory v. An- derson, 103 Ind. 12. Sufficient Record. So where the rec- ord showed that an appeal was taken in open court, and that the court fixed the amount of the bond, approved the surety named, and designated the time within which the bond should be filed, the bond was held sufficiently approved. Hartlep v. Cole, 120 Ind. 248. Or where the record shows that a justice of the peace received the appeal bond and allowed the appeal. Jenkins v. Emery, 2 Wyoming 58. Entry of the appeal bond upon the docket of the court is sufficient ap- proval. Asch v. Wiley, 16 Neb. 41. Waiver. By reciting that the appel- lant "filed a bond not approved or disapproved by the court because no motion was made by either party," approval was presumed waived by appellee. Rawson v. Dampner, 143 Mass. 76; Bryson v. Lucas, 85 N. Car. 397- Transcript. The fact that the clerk embodies an appeal bond in the tran- script is presumptive evidence of its approval by him. Evans v. Pigg, 28 Tex. 588; Rodgers v. Ferguson, 32 Tex. 533. Form. An indorsement, " I approve of this bond both in form and sub- stance," held, an approval both of the sureties and of the penal sum. Maynard . Haskins, 8 Mich. 260. 2. Woodburn v. Fleming, i Blackf. (Ind.)4; Miller v. O'Reilly, 84 Ind. 168; McCloskey v. Indianapolis Mfg., etc., Union, 87 Ind. 20; McCrory v. Ander- son. 103 Ind. 12; Simpson v. Minor, i Blackf. (Ind.) 229; Robinson v. Chad- wick, 22 Ohio St. 527; Williams v. Mc- Conico, 25 Ala. 538. Certiorari to Compel Certification of True Time. Where the presumption of a different date is sufficiently shown by parol, a special certiorari will be awarded on motion to compel the trial judge to certify the true time. Williams v. McConico, 25 Ala. 538. 3. People v. Leaton, 25 111. App. 45; People v. Leaton, 121 111. 666; Harris v. Register, 70 Md. 109; Jacobs v. Morrow, 21 Neb. 233; State v. Dillon, 98 Mo. 90; Blake v. Kimball, 22 Vt. 632; Potters. Grisham, 3 How. (Miss.) 76; Scranton v. Bell, 35 Tex. 415; Hol- lis v. Border, 10 Tex. 277; Shelton v. Wade, 4 Tex. 148; Fuerman v. Ruhle (Tex. App., 1890), 16 S. W. Rep. 536. 4. Jacobs v. Morrow, 21 Neb. 233; Wheeler v. Kuhns, 9 Colo. 196; M'Al- ister v. Scrice, 7 Yerg. (Tenn.) 277. Approval of Irregular Bond. An offi- cer or court is not authorized to ap- prove of an irregular bond, but ap- proval thereof is sufficient to vest the appellate court with jurisdiction to al- low amendment or to hear the appeal where appellee objects. Jacobs v. Morrow, 21 Neb. 233; Wheeler v. Kuhns, 9 Colo. 196; Sharp v. Bedell, 10 111. 88; Bragg v. Fessenden, n 111. 544; Petillon T-. Oilman, 86 111. 401. Approval of Form of Bond. Where an i Encyc. PI. & Pr. 64. 1009 Approval of Bond. APPEAL BONDS. Keview of Approval. 5. Review of Approval Objections. The appellee must make specific objections to the approval of the sureties by the trial courts to have their acceptance reviewed. And objections not duly made in the trial court to the sufficiency of the sureties are deemed to be waived. 1 When Eeviewable. Whether made ex parte or on notice, the ap- proval by the trial judge is ordinarily conclusive, 2 unless fraud in misrepresenting the pecuniary condition of the sureties, 3 or a official is designated to approve the bond, he is consequently under no ob- ligation to approve of its form. Peo- ple -v. Leaton, 25 111. App. 45. On the other hand, an approval of the form and manner of the execution of the bond is not sufficient unless the sufficiency of the sureties in the bond is approved of also. Eldridge v. Howell, 4 Paige (N. Y.) 459. Execution. Thus an approval of an appeal bond presupposes its due execu- tion, but does not preclude the parties named therein from objecting on the ground of want of proper execution. Ford v. Albright. 31 Ohio St. 35. Approval implies that there is no question of appellant's identity; so that a slight change in spelling in the body and signature of the bond does not vitiate it. Guez v. Dupuis, 152 Mass. 456; Gaines v. Stiles, 14 Pet. (U. S.) 322; Franklin v. Talmadge, 5 Johns. (N. Y.) 84. Presumption on Approval Costs. It will be presumed that an appeal bond duly approved by the proper officer conforms to his estimates, and that where a sum is named as costs there- in he included the probable costs of the appeal subsequently accruing. Drums/. Ft. Worth, 25 Tex. App. 664. The appeal will, therefore, not be dismissed because costs are taxed later at a figure which renders the amount of the bond too small. Zidelc z/. State (Tex. Crim. App., 1893), 22 S. W. Rep. 143. Approval as Fixation of Penalty. Ap- proval of a bond in a certain amount is a sufficient fixation of the penalty where discretionary. Dunseith v. Linke, 10 Daly (N. Y.) 365. Presumption of Satisfaction with Sure- ties' Solvency. The approval by the proper officer is presumptive proof that he was satisfied that the sureties were solvent. Fuerman v. Ruhle (Tex. App., 1890), 16 S. W. Rep. 536. Rescinding Approval. An official who has once approved a bond has no pow- er to rescind his action subsequently. Miller v. O'Reilly, 84 Ind. 168. Signature of the Sureties. The court cannot demand that the sureties shall execute the bond in its presence, but it may demand proof of the genuine- ness of their signature. State v. Clark, 24 Neb. 318. 1. Bazzo v. Wallace, 16 Neb. 293; Johnston v. King, 83 Wis. 8; Culliford v. Gadd (Super. Ct.), 22 N. Y. Supp. 539; Poston v. Mhoon, 49 Miss. 620; Granger v. Parker, 142 Mass. 186; Beardsley v. Hill, 61 111. 354; State v. Judge, 17 La. 433; State v. Judge, 19 La. 174; Stantonz/. Parker, 2 Rob. (La.) 550; Ex p. Barrett, 4 La. Ann. 236; Surget v. Stanton, 10 La. Ann. 318; Tanner v. King, 10 La. Ann. 485; Wood v. Harrell, 14 La. Ann. 61; State v. Fourth Dist. Ct., 20 La. Ann. 390- 2. Williams v. Claflin, 103 U. S. 753; Florida Cent. Co. v. Schulte, 100 U. S. 644; Mexican Nat. Const. Co. v. Rensens, 118 U. S. 77; Jerome v. Mc- Carter, 21 Wall. (U. S.) 17; Martin . Hazard Powder Co., 93 U. S. 302; Ex p. French, 100 U. S. i; Stafford v. Union Bank, 16 How. (U. S.) 135; New Orleans Ins. Co. v. Albro Co., 112 U. S. 506; Tampa St. R., etc., Co. v. Tampa Suburban R. Co., 30 Fla. 410; State v. Le Bourgeois, 45 La. Ann. 249; Bradley v. Gait, 5 Mackey(D. C.) 317; Midland R. Co. v. Wilcox, in Ind. 561; Moore v. Olin, 6 Mich. 328. The approval of the sufficiency of the sureties lies ordinarily in the discre- tion of the trial court. Delamater v. Byrne, 57 How Pr. (N. Y. Supreme Ct.) 170. Approval by Appellate Justice. The ap- proval of the sufficiency of an amended bond or undertaking by a justice of the appellate court is conclusive. Schacht v. Odell, 52 Cal. 447; Steven- son v. Steinburg, 32 Cal. 373. 8. Tampa St. R., etc., Co. v. Tampa Suburban R. Co., 30 Fla. 410; Hays v. Todd, 26 Fla. 214. 1010 Construction of Contract. APPEAL BONDS. Generally. material change therein or in the circumstances of the case or parties or in the pecuniary condition of the sureties arising since the approval, can be shown. 1 XIX. CONSTRUCTION OF CONTRACT 1. Generally. The ordinary rule that a contract will, where possible, be so construed as to carry out the intention of the parties, applies to appeal bonds. 2 The contract of suretyship on appeal, as elsewhere, will be 1. Jerome z>. McCarter, 21 Wall. (U. S.) 17; Williams v. Claflin, 103 U. S. 753; Midland R. Co. v. Wilcox, in Ind. 561; Martin v. Hazard Powder Co., 93 U. S. 302. Such objections may be made for he first time in the appellate court. Tampa St. R., etc., Co. v. Tampa Suburban R. Co., 30 Fla. 410. Subsequent Insolvency. Where a sur- ety becomes insolvent subsequent to the approval of the bond, the ap- pellate court may exercise its discre- tion in requiring a new surety to be given. Mahon v. Noon, 99 N. Y. 625; Dering v. Metcale, 72 N. Y. 613; Bee- man v. Banta, 113 N. Y. 615; Ran- schaupt v. Carpenter, 63 Ind. 359; Booten v. Empire State Bank. 67 Ga. 358; Florida Orange Hedge Fence Co. v. Branham, 32 Fla. 289. Where it is satisfied that the remain- ing surety is abundantly sufficient to answer the penalty of the bond, or where the judgment is otherwise se- cured, the appellate court will not order a new surety to be given. Ma- hon v. Noon, 99 N. Y. 625; Dering v. Metcale, 72 N. Y. 613. Where ordered, a reasonable time must be given for the appellant to furnish the additional surety. Booten v. Empire State Bank, 67 Ga. 358. In Louisiana a trial judge may order the substitution of a new surety al- though the case has passed to the Supreme Court. Gray v. Lowe, 9 La. Ann. 478. 2. Smith v. Nescatunga Town Co., 36 Kan. 758; St. Louis, etc., R. Co. v. Wilder, 17 Kan. 239; Dyer v. Brad- ley, 88 Cal. 590; Swasey v. Adair, 83 Cal. 136; Swain v. Graves, 8 Cal. 551; People's Brewing Co. v. Boebinger, 40 La. Ann. 277; Pasley v. McConnell, 40 La. Ann. 609; Blanchard v. Gloyd, 7 Rob. (La.) 542; Baldridge v. Penland, 68 Tex. 441; Field v. Schricher, 14 Iowa 119; Acker v. Alexandria, etc., R. Co.,84Va. 648; Matthews v. Mor- rison, 13 R. I. 309; Conner v. Paxson, I Blackf. (Ind.) 207; Ward v. Buell, 18 Ind. 104, 81 Am. Dec. 349; Ham v. Greve, 41 Ind. 531; Carver v. Carver, 115 Ind. 539; U. S. -v. Drapier (D. C.), 18 Wash. L. J. 532; People v. Oneida, i Wend. (N. Y.) 28; Yocum v. Barnes, 8 B. Mon. (Ky.) 497; Stockton v. Turner, 7 J. J. Marsh. (Ky.) 193; Cooke v. Graham, 3 Cranch(U. S.) 235; But- ler v. Wigge, i Saund. 65; Whitsett v. Womack, 8 Ala. 477; Block v. Blum, 33 111. App. 643; Hibbard v. McKind- ley, 28 111. 240; Schill v. Reisdorf, 88 111. 411. Implied Condition. By the execution of the appeal bond the appellant im- pliedly covenants that he will do noth- ing pending the appeal to render com- pliance with the condition of the appeal bond fruitless. Jones -v. Fisher, 116 111. 72. Entire Contract. An undertaking is an entire contract although contain- ing several stipulations. Dore v. Covey, 13 Cal. 507. The Words "To Abide" a judgment or order occurring in an appeal bond mean to "perform," "execute," or conform to such judgment or order. Erickson v. Elder, 34 Minn. 370; Mc- Minn v. Patton, 92 N. Car. 371. See ante, article ABIDING THE EVENT. Interpretation. The ordinary canons of interpretation of contracts are to be applied in the construction of appeal securities. Shreffler v. Nadelhoffer, !33 HI. 555; Belloni v. Freeborn, 63 N. Y. 383 ; Hamilton v. Van Rens- selaer, 43 N. Y. 244; Locke v. Mc- Vean, 33 Mich. 473; Kastner v, Win- stanley, 20 U. C. C. P. 101; Field v. Schricher, 14 Iowa 119. Thus the court may transpose or reject insensible words and depart from the letter of the text to effectu- ate the intention of the parties where it can be done without framing a new contract. Matlock v. Bank, 7 Yerg. (Tenn.) 95; Nichol v. McCombs, 2 Yerg. (Tenn.) 83; Swain v. Graves, 8 Cal. 551; Blanchard v. Gloyd, 7 Rob. (La) 542; Butler v. Wigge, i Saund. 65; Cooke v. Graham, 3 Cranch (U. S.) 101 i Construction of Contract. APPEAL BONDS. Generally. strictly construed, 1 but the principle that it cannot be extended 235; Field v. Schricher, 14 Iowa 119. In People v. Oneida, i Wend. (N. Y.) 28, the words in the condition, " to pay the said judgment and costs of the appeal," were transposed so as to read after the words, " In case judgment shall be given against the said appel- lant, " instead of before, as the bond stood. 1. Shreffler v. Nadelhoffer, 133 111. 551; Field v. Rawlings, 6 111. 581; Waters v. Simpson, 7 111. 570; Rey- nolds v. Hall, 2 111. 35; People v. Moon, 4 111. 123; Governor v. Ridg- way, 12 111. 14; Ryan v. Shawnee- town, 14 111. 20; Chicago, etc., R. Co. v. Higgins, 58 111. 128; Stull v. Hance, 62 111. 52; People v. Tompkins, 74 111. 482; Cooper -v. People, 85 111. 417; Mix v. Singleton, 86 111. 194; Phillipi v. Singer Mfg. Co., 88 111. 305; Dodg- son v. Henderson, 113 111. 360; Trust- ees of Schools v. Shirk, 119 111. 579; Burlington Ins. Co. v. Johnson, 120 111. 622; Vinyard v. Barnes, 124 111. 346; Smith v. Huesman, 30 Ohio St. 662; Hall v. Williamson, 9 Ohio St. 23; Myers v. Parker, 6 Ohio St. 501; Lang v. Pike, 27 Ohio St. 498; State v. Medary, 17 Ohio St. 307; Marsh v. Byrnes, 7 Cine. L. Bull. (Ohio) 345; Miller v. Stewart, 9 Wheat. (U. S.) 680; The Ann Caroline, 2 Wall. (U. S.) 549; The Harriett, i W. Rob. 192; Nof- singer v. Hartnett, 84 Mo. 549; Lud- low v. Simond, 2 Cai. (N. Y.) i. In Mix v. Singleton, 86 111. 194, it was said: "The measure of the lia- bilities of sureties is fixed by the terms of the instrument they may sign, and we do not understand such undertak- ing can be enlarged or varied by judi- cial construction." In Miller v. Stewart, 9 Wheat. (U. S.) 63o, it was said: " Nothing can be clearer, both upon principle and au- thority, than the doctrine that the liability of a surety is not to be ex- tendeJ by implication beyond the ter ns of his contract." In Jenkins v. Skillern, 5 Yerg. (Tenn.) 288, it was held accordingly that, where the recital of a judgment was erroneous in amount, the surety could not be held beyond it. And where the bond is conditional for the payment of any judgment against the appellant, the surety is not liable where the judgment is ren- dered against any other person. Fried- man v. Lemle, 38 La. Ann. 654. Variance. The general rule is that variance in an essential particular be- tween the record and the appeal bond is fatal to the validity, Lemon v. Stephenson, 40 111. 45 ; Dietrich v. Rumsey, 40 111. 50; Willenborg z/. Murphy, 40 111. 46; Williams v. State, 26 Ala. 85; Dumas v. Hunter, 28 Ala. 688; Burdine z>. Mustin, 33 Ala. 634; unless the bond itself contains data from which the error may be corrected beyond ambiguity, Lemon v. Steph- enson, 40 fll. 45; Forbes v. Porter, 23 Fla. 47; Southern Pac. R. Co. v. Stan- ley, 76 Tex. 418; Satterwhite v. State, 28 Ala. 99; Weissenger v. Crook, 7 Ala. 710; Flournoy v. Nims, 17 Ala. 36; People v. Munroe, 3 Wend. (N. Y.) 426. And simple inaccuracies will not avoid the bond where the terms of the contract are sufficiently ascertained otherwise. Mathews v. Morrison, 13 R. I. 309. Thus, where a bond is executed by three appellants and in the condition they are referred to as "the above- named plaintiff," held, no variance. Swain v. Graves, 8 Cal. 551. Variation in Names. Substantial va- riation in the names between obliga- tion and condition avoids the bond, Gillilan v. Gray, 13 111. 705 ; unless the context of the bond clearly shows how the mistake should be rectified, as where the name of the appellee is inadvertently used for the appellant's in the condition. Schill v. Reisdorf, 88 111. 411; Hibbard v. Mc- Kindley, 28 111. 240; Black v. Blum, 33 111. App. 644; Swain v. Graves, 8 Cal. 549; Morris v. Covington, 2 La. Ann. 259; or the obligee fails to object thereto, Kendall v. Gleason, 152 Mass. 457; Jones v. Whitbread, n C. B. 406. Reference to Record. Reference may be had to the record to determine which party appeals, where the appeal bond does not so state. Chamblee v. Baker, 95 N. Car. 98. And in Surget v. Stanton, 10 La. Ann. 318, it was held that where the date of the judgment was omitted by mistake in the bond, the petition of ap- peal might be referred to to identify it. Erroneous Description. The rule .falsa demonstratio non nocet properly 1012 Construction of Contract. APPEAL BONDS. When Liability Accrues. by implication applies only where its terms have been ascer- tained by a reasonable construction of the whole instrument by the ordinary canons of interpretation. 1 2. When Liability Accrues Final Judgment. As a general rule the rendition and entry of a final judgment of affirmance on ap- peal is required to subject the sureties to liability on the bond. 2 applies, and the instrument will be legally effective if sufficient description remain after the rejection of erroneous or ambiguous portions to identify its objects. Blanchard v. Gloyd, 7 Rob. (La.) 542. Oral Statement of Parties as to Intent. But oral statements of the parties as to the intent with which it was ex- ecuted are ordinarily inadmissible to contradict the letter of the bond. Hy- draulic Press Brick Co. v. Neumeister, 15 Mo. App. 592. 1. McElroy v. Mumford, 128 N. Y. 207 ; Crist v. Burlingame, 62 Barb. (N. Y.) 351 ; Scott v. Buncombe, 49 Barb. (N. Y.) 73 ; Mathews v. Morri- son, 13 R. I. 309. Limitation of Rule. The rule of strict construction is limited by the controlling principle that sureties are presumed to know the nature of the obligation and to intend its obvious purpose. Crist v. Burlingame, 62 Barb. (N. Y.) 351 : Mathews v. Morri- son, 13 R. I. 309; Llewellyn z>. Jersey, n M. & W. 183; Adler -v. Potter, 57 Ala. 571. Thus in McElroy v. Mumford, 128 N. Y. 307, it was held that a judg- ment reciting that "the abovenamed respondent recovered a judgment against" the appellant "for the sum of $122.97, being costs of affirmance and interest thereon from that date," and further reciting that the sureties named undertook that appellant would pay costs awarded against him to sum named, and in case of affirmance the amount of the judgment directed to be paid thereby. Held, that the judg- ment named for $122.97 was an indi- visible part of the entire judgment for $3659.06 defined in the notice of ap- peal ; that the purpose, as shown by the notice of appeal and stay secured by the appeal bond, was to secure the entire amount of the judgment; and that sureties were liable accordingly on affirmance for the entire judgment of $3659.06 plus the $122.97 costs. McElroy v. Mumford, 128 N. Y. 307. 2. Wilson v. Churchman, 6 La. Ann. 468; Diamond v. Petit, 3 La. Ann. 37; Holmes v. Steamer Belle Air, 5 La. Ann. 523; Lowenstein, v. Fudicker, 43 La. Ann. 886; Rawlings v. Barham, 12 La. Ann. 630; Odell v. Wootten, 38 Ga. 224; Staley v. Howard, 7 Mo. App. 377; Railsback v. Greve, 58 Ind. 52; Gregory v. Stark, 4 111. 611; Mix v. People, 86 111. 329; Wood v. Derrick- son, i Hilt. (N. Y.) 410; Poppenhusen v. Seeley, 41 Barb. (N. Y.) 450; State v. Meacham, 6 Ohio Cir. Ct. Rep. 31; Com. v. Wistar, 142 Pa. St. 373. It does not arise, therefore, on the mere signing or entry of a mere order for judgment. Poppenhusen v. Seeley, 41 Barb. (N. Y.) 450. Return of Execution Against Appellant. Unless statutes so require, appellee need not exhaust the appellant's prop- erty by levy and return of execution before proceeding against the sureties. Their liability accrues unless the judg- ment is immediately paid by the ap- pellant, Gregory v. Stark, 4 111. 611; Staley v. Howard, 7 Mo. App. 377; Poll v. Murr, 3 Cine. L. Bull. (Ohio) 1141; Means v. Goodenow, Tappan (Ohio) 255; although the judgment rendered against appellant expressly provides that execution may issue against his specific property if not paid as ordered, Staley v. Howard, 7 Mo. App. 377- Where statutes require its issuance and levy, no liability attaches to the sureties until the execution has been duly returned. Champomier v. Worth- ington, 2 La. Ann. 1013; Chalaron v. McFarlane, 9 La. 229; Alley v. Haw- thorn, i La. Ann. 122; Lynch v. Burr, 10 Rob. (La.) 136; Levois v. Thibo- daux, 13 La. Ann. 264; Cass v. Adams, 3 Ohio 223; Bank of Chillicothe v. Pierce, 6 Ohio 535; Mayo v. Williams, 17 Ohio 244; Garhorn v. Alexander, 4 West. L. Mag. (Ohio) 139. And the appellee must in such case enforce every right he may have by lien against the debtor's property. Tur- ner v. Parker, 10 Rob. (La.) 151 ; Flower v. Dubois, 10 Rob. (La.) 191. And fraud by appellee in failing to 1013 Construction of Contract. APPEAL BONDS. Joint Bond. An Interlocutory Judgment remanding the cause for further action by the trial court is not sufficient. 1 3. Joint Bond. Where a joint appeal bond is given by several appellants, the undertaking of the sureties is several as to each one of the principals, and such sureties are liable accordingly although the judgment is rendered against a portion only on appeal. 2 satisfy the judgment out of appel- lant's property is a good defense to the surety. Lafayette F. Ins. Co. v. Rem- mers, 30 La. Ann. 1347. A return nulla bona is usually all which is required to fix the liability of the surety. Rawlings v. Barham, 12 La. Ann. 630. And where the appellant is insol- vent the appellee may proceed without awaiting the liquidation. Wells v. Roach, 10 La. Ann. 543. 1. Unless it be merely to compute the sum due to appellee. Wilson v. Churchman, 6 La. Ann. 468. Modified Judgment. An appeal bond conditioned to pay such judgment as the appellate court may render against the appellant makes the sureties liable on the rendition of a modified or cor- rected judgment against the appellee. Sanders v. Rives, 3 Stew. (Ala.) 109. Dismissal, Abandonment, or Withdrawal of the Appeal is a breach of the con- dition of the appeal bond to prosecute the appeal to effect, and renders the appellant and sureties liable thereon. Wilcox v. Daniels, 22 Mo. 493; Hal- lam v. Stiles, 61 Wis. 270; Helden v. Helden, 9 Wis. 557; Meserve v. Clark, 115 111. 580; Trent v. Rhomberg, 66 Tex. 249; Keitzinger v. Reynolds, n Ind. 245; Champomier v. Washington, 2 La. Ann. 1013; Pass v. Payne, 63 Miss. 239; Coon v. McCormack, 69 Iowa 539; Wood v. Thomas, 5 Blackf. (Ind.) 553; Legate v. Marr, 8 Blackf. (Ind.) 404; Davis v. Sturgis, I Ind. 213; Reeves v. Andrews, 7 Ind. 207; Blair v. Kilpatrick, 40 Ind. 312; Gav- isk v. McKeever, 37 Ind. 484; Stelle v. Lovejoy, 125 111. 352. The liability of the sureties likewise accrues where, by statute, dismissal is equivalent to affirmance of the judg- ment appealed from, or where the ap- peal bond is conditioned to pay costs and damages awarded against the appellant. McSpedon v. Bouton, 5 Daly (N.. Y.) 30. Or where, in pursuance of a statutory power, the appellee, on failure of the appellant to prosecute the appeal, files the appropriate papers and ob- tains an affirmance of the judgment. Martin v. Campbell, 120 Mass. 129. Where the breach of the bond con- sists in a failure to prosecute the ap- peal with effect, the appellant is liable for nominal damages, although the judgment appealed from and all dam- ages and costs incidental thereto have been paid. George v. Bischoff, 68 111. 236. Second Appeal. Where the appeal is dismissed, but on taking second ap- peal the judgment appealed from is reversed, sureties on the first appeal bond are liable only for costs and nom- inal damages. Cook v. King, 7 111. App. 549; Stelle v. Lovejoy, 125 111. 352. Nature of the Contract. While the contract of a surety is contingent in that the surety only undertakes to per- form that part of the judgment which the appellant fails to perform (Sauer v. Griffin, 67 Mo. 654; Brown v. Ayer, 24 Ga. 288), yet the liability created thereby raises a direct obligation to the obligee for the act to be performed. Consequently where the penalty of the bond is for an undetermined amount, as for use of premises, it need net be adjusted between the appellant and appellee by action or otherwise before suing the surety. Wallerstern v. American Surety Co. (City Ct.), 40 N. Y. St. Rep. 508. 2. Ives v. Hulce, 17 111. App. 35; Warner v. Cameron, 64 Mich. 185; Seacord v. Morgan, 3 Keyes (N. Y.) 636; Burrall v. De Groot, i Bosw. (N. Y.) 637; Johnstone v. Connor (City Ct.), 10 N. Y. St. Rep. 702; Fritchie v. Holden, 19 Civ. Pro. Rep. (N. Y. Su- preme Ct.) 84; Hood v. Mathis, 21 Mo. 308. The same rule obtains where the trial on appeal is de novo. Neff v. Ed- wards, 81 Ala. 247; Mount v. Stuart, 86 Ala. 366. The affirmance of a joint judgment on appeal as to one defendant, and re- versal with or without award of new trial as to another, deprives the latter 1014 Construction of Contract. APPEAL BONDS. Measure of Liability. 4. Measure of Liability. The liability of the sureties on an appeal bond, where the appeal goes against the principal, is fixed by the legal import of its condition in the bond. 1 Where the bond is of any proprietary rights in the judg- ment, and the former may enforce the appeal security alone. Johnstone v. Connor (City Ct.), 10 N. Y. St. Rep. 702. Successful Appellant. A successful appellant is released from all liability on the bond although the decision is affirmed as to a co-appellant. Warner v. Cameron, 64 Mich. 185. The Contract of Suretyship Joint. Unless statutes prescribe otherwise the contract of two or more sureties on the same appeal security is joint only, and not joint and several or sev- eral. Wood v. Fisk, 63 N. Y. 249; Getty v. Binsse, 49 N. Y. 385, 10 Am. Rep. 379; Gross z>. Bouton, 9 Daly(N. Y.) 25; Pickersgill v. Lahens, 15 Wall. (U. S.) 140; U. S. v. Price, 9 How. (U. S.)oo. It follows that the discharge of one surety discharges all. Gross v. Bou- ton, 9 Daly (N. Y.) 25. It follows also that on the death of a surety his estate is discharged both at law and in equity unless statutes prescribe otherwise. Gross v. Bouton, 9 Daly (N. Y.) 25. 1. Parham v. Cobb, 9 La. Ann. 423; Lang v. Pike, 27 Ohio St. 498; Sharp v. Bedell, 10 111. 93; Stull v. Hance, 62 111. 52; Graeter v. DeWolf, 112 Ind. 4; Lafayette v. James, 92 Ind. 240; Weed Sewing Mach. Co. v. Winchel, 107 Ind. 260; Ludlow v. Simonds, 2 Cai. (N. Y.) i; McCluskey v. Cromwell, n N. Y. 593; Noyes v. Granger, 51 Iowa 227; Home Sav. Bank v. Traube, 6 Mo. App. 221; Pybus v. Gibbs, 38 Eng. L. & Eq. 57- As the liability of sureties cannot be extended beyond the condition of the bond, the sureties cannot be made liable for damages not included there- in. Parham v. Cobb, 9 La. Ann. 423. And where conditioned only to pay costs they cannot be forced to pay the original judgment if affirmed. La- Tourette v. Baird, Minor (Ala.) 325. Liability of Principal. It is also a general rule applicable to the liability of suretyship that up to the amount of the bond the liability of sureties is measured by that of the principal, and that no recovery can be had against them unless it can be had against him. Parnell v. Hancock, 48 Cal. 452; Sharon v. Sharon, 84 Cal. 433; Cole- man v. Bean, 14 Abb. Pr. (N. Y. C. PI.) 38; Onderdonk v. Voorhis, 2 Rcbt. (N. Y.) 24. And in an action on the bond sureties may avail themselves of any defense available to their prin- cipal. Sharon v. Sharon, 84 Cal. 433. Amount of Judgment. So, where the bond is conditioned to pay the judg- ment and costs, the extent of recovery is ordinarily the judgment, interest, and costs unless the bond specially provides otherwise, Kilgour v. Drain- age Com'rs, in 111. 342; Stellez/. Love- joy, 125 111. 352; Pitt v. Swearingen, 76 111. 250; Shunick v. Thompson, 25 111. App. 619. Attorneys' Fees. Sureties are not liable for attorneys' fees. Noll v. Smith, 68 Ind. 168. Rents and Profits. Nor ordinarily for rents and profits pending appeal af- fecting real estate unless the statute so declares. Opp v. Ten Eyck, 99 Ind. 345; Hays v. Wilstach, 101 Ind. 100; Opp v. Ward, 125 Ind. 241; Stults v. Zahn, 117 Ind. 297. Judgment In Rem. Where a judg- ment is personal against some of the defendants, and in rent against others, and the latter appeal and give a bond, they and their sureties are lia- ble on affirmation of the judgment ap- pealed from only for costs and dam- ages, and not to pay the personal judgment. Wilson v. Glenn, 77 Ind. 585; Hinkle v. Holmes, 85 Ind. 405; Scott v. Marchant, 88 Ind. 349. Judgment of Foreclosure. Sureties on an appeal bond in an action enforcing a lien on real estate are not liable for any deficiency arising from the appli- cation of the proceeds of the sale to the debt unless a personal judgment was rendered which the bond was con- ditioned to pay. Kennedy v. Nims, 52 Mich. 153; Kephart v. Farmers, etc., Bank, 4 Mich. 602. Statutory Amount. Where the bond given on appeal fails to mention a fixed sum, it is held in Indiana under cura- tive statutes supplying omissions of substance that the amount named in the statute will be held to have been in the contemplation of the parties. Graeter v. DeWolf, 112 Ind. i; State v. Britton, -1015 Construction of Contract. APPEAL BONDS. Discharge of Sureties conditioned in a fixed sum as penalty for breach of its obligation, a surety cannot be held to be liable for an amount in excess thereof, 1 except that principal and sureties are liable by way of damages for interest on the sum fixed in the bond and for costs of suit to collect it. 2 5. Discharge of Sureties. The liability of the sureties being con- tingent, any legal satisfaction as a bar of the judgment appealed from as against the principal discharges the sureties, 3 as reversal 102 Ind. 214; Ward v. Buell, 18 Ind. 104, 81 Am. Dec. 349; Sharpe v. Hard- ing, 21 Ind. 334; King v. Brewer, 19 Ind. 267. The approval by the proper official of an appeal bond for an amount less than the statute requires limits the liability of the sureties to the amount named, Ward v. Buell, 18 Ind. 104, 81 Am. Dec. 349; Sharp v. Bedell, 10 111. 93; unless the statute not merely de- fines its amount, but mandatorily de- clares that parties to appeal bond shall be liable in the amount named, in which case it cannot be lessened by agreement, King v. Brewer, 19 Ind. 267; Opp v. Ten Eyck, 99 Ind. 345. 1. United States. The Wanata, 95 U. S. 605; Ives v. Merchants' Bank, 12 How. (U. S.) 159; U. S. v. Ricketts, 2 Cranch (C. C.) 164; Bank v. Sprigg, I McLean (U. S.) 178; Lawrence v. U. S., 2 McLean (U. S.) 581; Goldhawk v. Duane, 2 Wash. (U. S.) 323; Leggett v. Humphreys, 21 How. (U. S.) 66; Bank of Mt. Pleasant v. Spring, i McLean (U. S.) 178; The Union, 4 Blatchf. (U. S.) 90; Farrar v. U. S., 5 Pet. (U. S.) 373; The Ann Caroline, 2 Wall. (U. S.) 538; Godfrey v. Gilmar- tin, 2 Blatchf. (U. S.) 340; Brown v. Burrows, 2 Blatchf. (U. S.) 341; Ses- sions v. Pintard, 18 How. (U. S.) 106; The Steamer Wm. H. Webb v. Bar- ling, 14 Wall. (U. S.) 406; Wallace v. Wilder, 13 Fed. Rep. 707. New York. Clark v. Bush, 3 Cow. (N. Y.) 151; Wood v. Fisk, 63 N. Y. 245; Oshiel v. DeGraw,6 Cow. (N. Y.) 63; Fairliew. Lawson.5 Cow.(N.Y.)424. Indiana. Graeter v. DeWolf, 112 Ind. i; Weed Sewing Mach. Co. v. Winchel, 107 Ind. 260; Sharpe v. Hard- ing, 21 Ind. 334; King v. Brewer, 19 Ind. 267; Miller v. O'Reilly, 64 Ind.i68. Other States. Talbot v. Morton, 5 Litt. (Ky.) 326; Graham v. Swigert, 12 B. Mon. (Ky.) 522; Allen v. Grider, 24 Ark. 271; Many v. Sizer, 6 Gray (Mass.) 141; Unteriein v. McLane, 10 Mo. 343; Hendrick v. Cannon, 5 Tex. 248. 2. The Wanata, 95 U. S. 605; U. S. v. Arnold, i Gall. (U. S.) 348; Ives v. Merchants' Bank, 12 How. (U. S.) 159; Crane v. Andrews, 10 Colo. 265; Mar- shall -v. Winston, 43 Miss. 666; Brainard v. Jones, 18 N. Y. 35; Lyon v. Clark, 8 N. Y. 148; Seaman v. McReynolds, 50 How. Pr. (N. Y. Super. Ct.) 421; Washington County Ins. Co. v. Colton, 26 Conn. 42; Carter v. Thorn, 18 B. Mon. (Ky.) 613; Hughes v. Wickliffe, n B. Mon. (Ky.) 202; Bakers. Morris, 10 Leigh (Va.) 294; Harris v. Clap, i Mass. 312, 2 Am. Dec. 27; Pitts v. Til- den, 2 Mass. 118; Hughes v. Hughes, 54 Pa. St. 240; Rowlain v. McDowell, i Bay (S. Car.) 490; Smedes v. Hough- taling, 3 Cai. (N. Y.) 48; Hale v. Thomas, i Vern. 349; Erickson v. El- der, 34 Minn. 371. The interest on the penalty by way of damages cannot, together with the penalty, exceed principal and interest due on judgment with costs of suit. East India Co. v. Champion, n Bligh 459; Harris v. Clap, i Mass. 312, 2 Am. Dec. 27; Brainard v. Jones, 18 N. Y. 35; Hughes v. Wickliffe, n B. Mon. (Ky.) 202. In Leggett v. Humphreys, 21 How. (U. S.) 66, it was said: " The principle which limits the liability of the surety by the penalty of this bond inheres intrinsically in the character of his en- gagement. * * * The undertaking of the surety is essentially a pledge to make good this misfeasance or non- feasance of his principal to an amount coextensive with the penalty of his bond." 3. This follows because their lia- bility is contingent upon his. Green v. Raftes, 67 Ind. 49; Cass v. Adams, 3 Ohio 223; Cook v. King, 7 111. App. 549; First Nat. Bank v. Rogers, 13 Minn. 407; Ellis v. Fisher, 10 La. Ann. 479; Herrick v. Swart- wout, 72 111. 340; Stelle z>. Lovejoy, 125 111. 352; Andrews v. Scotton, 2 Bland (Md.) 629. Execution Against Person. The issu- 1016 Construction of Contract. APPEAL BONDS. Change of Issues. en appeal, 1 or payment of the affirmed judgment by appel- lant. 2 6. Change of Issues. As a general rule, any material change in the issues on appeal, without their consent, discharges the sureties. 3 Agreement of Parties . And they are discharged by any agreement of the parties by which the obligation of the judgment appealed from is varied or the time for payment is suspended. 4 ance of an execution against the person of the appellant, as to whom a judgment has been affirmed on appeal, and his arrest, imprisonment, and dis- charge thereon, do not release the surety on the undertaking. Prusia z>. Brown, 45 Hun (N. Y.) 80. 1. Rothberger v. Wonderly, 66 111. 39- 2. Stelle v. Lovejoy, 125 111. 352. Tender. A sufficient tender of per- formance of the judgment by either principal or sureties on an appeal bond discharge the sureties from its obligations, whether accepted or not. Spurgeon v. Smitha, 114 Ind. 453; Post v. Losey, in Ind. 75; Mus- grave v. Glasgow 3 Ind. 31; Wilson v. McVey, 83 Ind. 108; Sharp v. Miller, 57 Cal. 415; Solomon v. Reese, 34Cal. 28; Hayes v. Josephi, 26 Cal. 535; Joslyn v. Eastman, 46 Vt. 258; Sears v. Van Dusen, 25 Mich. 351; Hamp- shire Mfg. Bank v. Pillings, 17 Pick. (Mass.) 87. 3. Post v. Shafer, 63 Mich. 85; Anderson v. Robinson, 38 Mich. 407; Taylor v. Dansby, 42 Mich. 82; Evers v. Sager, 28 Mich. 47; Cross v. Eaton, 48 Mich. 184; Munn v. Haynes, 56 Mich. 140; Irwin v. Sanders, 5 Yerg. (Tenn.) 287; Shimer v. Hightshue, 7 Blackf. (Ind.) 238; Sage v. Strong, 40 Wis. 575; Willis v. Crooker, I Pick. (Mass.) 204; Hubbellw. Bissell, 2 Allen (Mass.) 196; Hill v. Hunnewell, I Pick. (Mass.) 192; Danielson v. An- drews, i Pick. (Mass.) 156; Bean v. Parker, 17 Mass. 591; Langley v. Adams, 40 Me. 125; Curry v. Barclay, 3 Ala. 484; Tarver v. Nance, 5 Ala. 718; or where the name of one of the joint plaintiffs in error is stricken out of the writ of error by order of the court. Tarver v. Nance, 5 Ala. 718. Enlargement of Claim. Thus on ap- peal from a justice of the peace to the Circuit Court, an enlargement of the claim without the sureties' consent avoids their liability on a bond given to secure a judgment for a denned amount. Sage v. Strong, 40 Wis. 575; Willis v. Crooker, i Pick. (Mass.) 204; Hill v. Hunnewell, i Pick. (Mass.) 192; Danielson v. Andrews, i Pick. (Mass.) 156; Hubbell v. Bissell 2 Allen (Mass.)ig6; Bean v. Parker, 17 Mass. 591; Langley v. Adams, 40 Me. 125; Irwin v. Sanders, 5 Yerg. (Tenn.) 287. Otherwise where the bond is to secure any judgment which may be rendered. Hare v. Marsh, 61 Wis. 437, 50 Am. Rep. 141; Masser v. Strickland, 178. & R. (Pa.) 354, 17 Am. Dec. 668. Statutory Increase of Liability. The sureties to an undertaking on appeal are presumed to contract with refer- ence to the power of the legislature to change the law affecting the damages awarded on appeal, and they are bound by any statutory increase therein made after they enter into the contract and while the appeal is unde- cided. Homer v. Lyman, 4 Keyes (N. Y.)2 3 7- 4. Comegys v. Cox, i Stew. (Ala.)2&2; Leonard v. Gibson, 6 111. App. 503; Gardner v. Watson, 13 111. 347; Win- gate v. Wilson, 53 Ind. 78; Shimer v. Hightshue, 7 Blackf. (Ind.) 238; John- son v. Flint, 34 Ala. 673. Thus an agreement without the consent of sureties that judgment of affirmance shall be entered for a specified amount discharges them, Johnson v. Flint, 34 Ala. 673; or an agreement to pay a sum in instal- ments in satisfaction of a judgment pending an appeal without their con- sent, Leonard v. Gibson, 6 111. App. 503; or where appellee, without consent of sureties, takes by agreement a judg- ment against a portion only of the ap- pellants, Shimer v. Hightshue, 7 Blackf. (Ind.) 238; or suspends exe- cution on the judgment by agree- ment with appellant without consent of sureties, Wingate v. Wilson, 53 Ind. 78. Amendment Adding New Party. But the surety is not discharged by an amendment adding a new party in a Circuit Court on appeal from a justice court. Helt v. Whittier, 31 Ohio St. 1017 [Remedies of Obligee. APPEAL BONDS. Remedies of Obligee. XX. REMEDIES OF OBLIGEE. As appeal bonds have all the essentials of valid contracts, the general principle that statutory remedies are cumulative and not exclusive applies. 1 Unless, therefore, the remedy pointed out by statute is expressly manda- tory, the obligee may resort to an independent action on the con- tract against the obligors. 2 Ignorance and Fraud. The surety cannot plead his ignorance of the extent of his contract, 3 or even the fraudulent misrepresentations of the appellant or his agents in inducing its creation. 4 475, overruling Lang v. Pike, 27 Ohio St. 498. Injunction Restraining Collection of Judgment. The obtaining of an in- junction by the appellant restraining the collection of the judgment affirmed on appeal, without consent of sure- ties, does not discharge them. Hodges v. Gervin, 6 Ala. 478. Nonsuit Set Aside by Agreement. In Bailey v. Rosenthal, 56 Mo. 385, it was held that sureties are not such parties to the suit as to require their consultation in any step taken prior to final judgment, and that a nonsuit might be set aside by agreement taken on appeal to a Circuit Court without their discharge. 1. Trent v. Rhomberg, 66 Tex. 252; Lobdell v. Lake, 32 Conn. 16; Candee v. Hay ward, 37 N. Y. 653; State v. Boies, 41 Me. 344; Mestling v. Hughes, 89 111. 389; Hesters. Keith, i Ala. 316; Rowlet v. Eubank, I Bush (Ky.) 477; Burroughs v. Lowder, 8 Mass. 372. 2. Trent v. Rhomberg, 66 Tex. 252; Lobdell v. Lake, 32 Conn. 16; State v. Boies, 41 Me. 345; Legate v. Marr, 8 Blackf. (Ind.) 404; Ellis v. Hull, 23 Cal. 161; Philbrick v. Buxton, 40 N. H. 384; McConnell v. Swailes, 3 111. 571; Karthaus v. Owings, 6 Har. & J. (Md.) 138; Hobart v. Hilliard, n Pick. (Mass.) 143; Ashley v. Brasil, i Ark. 144. A law providing that the appellate court may, on affirmance of the judg- ment appealed from, render judgment directly against sureties on the appeal bond is constitutional. Beall v. New Mexico, 16 Wall. (U. S.) 539- The Statutory Remedy cannot be re- sorted to unless the appeal bond given complies with the statutory require- ments. Where the obligee accepts or waives the defects in an appeal bond invalid as a statutory obligation, he must bring an independent action on contract. State v. Montgomery, 74 Ala. 226; Brown v. Levins, 6 Port. (Ala.)4i4; Curry v. Barclay, 3 Ala. 484; Tarver v. Nance, 5 Ala. 712; Hinson v. Preslor, 27 Ala. 643. Deceased Surety. A valid judgment cannot be rendered on appeal directly against a deceased surety on the bond; his personal representatives should be made parties before the termination of the cause on appeal, otherwise an in- dependent suit must be brought. Nix v. French, 10 Heisk. (Tenn.) 377. 3. He is bound to know the measure of his liability on the appeal bond. Vail v. Reynolds, 51 Hun (N. Y.) 468; Western New York L. Ins. Co. v. Clinton, 66 N. Y. 326; Wallace v. Wil- der, 13 Fed. Rep. 715; Ladd z/.Trustees, 80 111. 223; George v. Tate, 102 U. S. 564; Dair v. U. S., 16 Wall. (U. S.) i; McMinn v. Patton, 92 N. Car. 371; Chalaron v. McFarlane, 9 La. 229; State v. Judge, 19 La. 174. 4. George v. Tate, 102 U. S. 564; Dairz/. U. S., 16 Wall. (U. S.) i; Wal- lace v. Wilder, 13 Fed. Rep. 715; West- ern New York L. Ins. Co. v. Clinton, 66 N. Y. 326; Ladd v. Trustees, So 111. 233; unless the obligee had knowl- edge thereof at the time. Chalaron v. McFarlane, 9 La. 229. Condition Unperformed. In New York, where a surety signs an appeal bond or undertaking on the condition that another person shall become a party to it, a delivery of the bond in viola- tion of the agreement does not bind the surety. Grimwood v. Wilson, 31 Hun (N. Y.)2i5; People v. Bostwlck, 32 N. Y. 445; Bookstaver v. Jayne, 60 N. Y. 150; Benton v. Martin, 52 N. Y. 570. The contrary is held in Indiana. Al- len v. Marney, 65 Ind. 398, 32 Am. Rep. 73. See Am. & Eng. Ency. Law, tit. BONDS. Prior Appeal. So the fact that sure- ties were ignorant that the judgment appealed from had already been af- 1018 Estoppel of Sureties. APPEAL BONDS. Estoppel of Sureties. XXI. ESTOPPEL OF STTBETIES. By obtaining the benefit of an ap- peal the appellant and his sureties are estopped from questioning the sufficiency of the appeal bond ; * and the recitals contained therein are conclusive in a suit brought against them on the bond. 2 firmed on a prior appeal is no defense. McClure v. Colclough, 6 Ala. 492. 1. Pray v. Wardell, 146 Mass. 327; Fall River v. Riley, 140 Mass. 488; Grangers. Parker, 142 Mass. 186; Gla- zier v. Carpenter, 16 Gray (Mass.) 385; Com. v. Sullivan, II Gray (Mass.) 203; Williams v. Coleman, 49 Mo. 325; Livingston v. Hammer, 7 Bosw. (N. Y.)67o; Price v. Kennedy, 16 La. Ann. 78. 2. Gudtner v. Kilpatrick, 14 Neb. 347; Adams v. Thompson, 18 Neb. 541; Coon v. McCormack, 69 Iowa 539; Trent v. Rhomberg, 66 Tex. 249; George v. Bischoff, 68 111. 236; Arnott v. Friel, 50 111. 174; Blackburn v. Bell, 91 111. 434; Meserve v. Clark, 115 111. 580; Smith v. Whitaker, n 111. 417; Mix v. People, 86 111. 329; Smith v. Lozano, I 111. App. 171; Bowen v. Reed, 34 Ind. 430; Reeves v. Andrews, 7 Ind. 207; Wood v. Thomas, 5 Blackf. (Ind.) 553; Legate v. Marr, 8 Blackf. (Ind.) 404; Rock v. Gordon, 6 Blackf. (Ind.) 192; Davis v. Sturgis, i Ind. 213; Blair v. Kilpatrick, 40 Ind. 312; Buchanan v. Milligan, 125 Ind. 332; Trueblood v. Knox, 73 Ind. 310; Carver v. Carver, 77 Ind. 498; Hartlep v. Cole, 120 Ind. 247; Robertson v. Smith, 129 Ind. 422; Riley v. Mitchell, 38 Minn. 9; Barrett Min. Co. v. Tappan, 2 Colo. 124; Beeman v. Banta, 113 N. Y. 615; Levi v. Dorn, 28 How. Pr. (N. Y. Supreme Ct.) 217; Biagi v. Howes, 63 Cal. 384; Goodwin v. Fox, 120 U. S. 775. In Hartlep v. Cole, 120 Ind. 250, it was said: " It is too late for the appel- lants, after having executed the replev- in bond and obtained possession of the property after the court had rendered judgment awarding the property to the appellee, and after a failure to comply with the order of the court or pay the judgment, to set up as a de- fense to the action that the statutory provisions in regard to the execution of the bond were not technically com- plied with." Instances. They cannot therefore contradict the existence of the judg- ment recited in the bond, Arnott v. Friel, 50 111. 174; or that it was un- satisfied, Smith v. Lozano, i 111. App. 171; or that an appeal has been taken, Adams v. Thompson, 18 Neb. 541- Jurisdictional Defects. The doctrine of estoppel has been extended to cover defects which are of a Jurisdictional character, as where the appeal bond has not been filed in time, Gudtner v. Kilpatrick, 14 Neb. 347; Adams v. Thompson, 18 Neb. 541; Easter v. Acklemire, 81 Ind. 16; Ham v. Greve, 41 Ind. 531; Jones v. Droneberger, 23 Ind. 74; Railsback v. Greve, 58 Ind. 72; Smock v. Harrison, 74 Ind. 348; State v. Britton, 102 Ind. 214; Pep- per v. State, 22 Ind. 399; or even where the appeal is void because none lies in the particular case, Gudtner v. Kilpatrick, 14 Neb. 347; McCon- nell v. Swailes, 3 111. 571; Sutherland v. Phelps, 22 111. 91; Clark v. Miles, 2 Pinney (Wis.) 432; Love v. Rockwell, i Wis. 382; Stephens v. Miller, 80 Ky. 47- The giving of an appeal bond es- tops the appellant to deny that the appellate court has jurisdiction over his person. Bowen v. Reed, 34 Ind. 430. But the doctrine of estoppel pre- supposes that the obligation was vol- untarily entered into. See Gudtner v. Kilpatrick, 14 Neb. 347. Impeachment of Judgment. The judg- ment rendered on appeal against the principal is generally held res adjudi- cata as to the sureties. Way v. Lew- is, 115 Mass. 26; Tracy v. Maloney, 105 Mass, oo; Heard v. Lodge, 20 Pick. (Mass.) 53, 32 Am. Dec. 197; Cutter v. Evans, 115 Mass. 27; Tracy v. Goodwin, 5 Allen (Mass.) 409; Hy- draulic Press Brick Co. v. Neumeis- ter, 15 Mo. App. 592; McCormick v. Hubbell, 4 Mont. 87; Krall v. Lib- bey, 53 Wis. 292. But they may impeach the judgment of affirmance as procured by fraud or collusion. Krall v. Libbey, 53 Wis. 295; Way v. Lewis, 115 Mass. 26; Cut- ter v. Evans, 115 Mass. 27; Granger v. Parker, 142 Mass. 186; McCormick v. Hubbell, 4 Mont. 87. But they cannot impeach the origi- 1019 Successive Appeals. APPEAL BONDS. Subrogation. XXII. SUCCESSIVE APPEALS. Where successive appeals are taken in the same case with different sureties and different bonds, sureties on the prior appeal are not responsible for liability on subsequent appeal, 1 unless the condition of the bond is expressly broad enough to include it. 2 XXIII. SUBROGATION. The doctrine of subrogation applies to sureties on an appeal bond. They may pay the judgment affirmed against their principal and be subrogated to all the rights and remedies of the appellee. 3 nal judgment when not parties to the trial court's action. Krall v. Libbey, 53 Wis. 295. 1. Hinckley v. Kreitz, 58 N. Y. 586; Nofsinger v. Hartnett, 84 Mo. 549; Winston v. Rives, 4 Stew. & P. (Ala.) 269. So, where on appeal to the General Term of the Supreme Court of New York the undertaking bound the ap- pellant to pay "all costs and damages incurred which may be awarded against him on said appeal," it was held that the sureties were not bound for the costs and damages on further appeal by the appellee to the Court of Appeals. Hinckley v. Kreitz, 58 N. Y. 586. 2. Hinckley -v. Kreitz, 58 N. Y. 586; Tibbies v. O'Connor, 28 Barb. (N. Y.) 538; Bennett v. Brown, 20 N. Y. 99; Ball v. Gardner, 21 Wend. (N. Y.) 270; Traver v. Nichols, 7 Wend. (N. Y.) 434; Smith v. Grouse, 24 Barb. (N. Y.) 435; Gardner v. Barney, 24 How. Pr. (N. Y. Supreme Ct.)46g; Robinson v. Plimpton, 25 N. Y. 487; Nofsinger v. Hartnett, 84 Mo. 549; Babbitt v. Shields, 101 U. S. 7. Novation. The execution of a new undertaking, with new sureties on further appeal to' a higher court does not act as a novation and discharge the old set of sureties from- their liability on the prior appeal. Mackel- lar v. Farrell (Super. Ct.), 29 N. Y. St. Rep. 357: Heebner v. Townsend, 8 Abb. Pr. (N. Y. Supreme Ct.) 234; Smith v. Grouse, 24 Barb. (N. Y.) 433; Letson v. Dodge, 61 Barb. (N. Y.) 125; Gardner v. Barney, 24 How. Pr. (N. Y. Supreme Ct.) 467; Richardson v. Kropf, 47 How. Pr. (N. Y. C. PI.) 286; Bennett v. Brown, 20 N. Y. 99; Robin- son v. Plimpton, 25 N. Y. 484; Hum- merton v. Hay, 65 N. Y. 380; Church v. Simmons, 83 N. Y. 261; Clute v. Knies, 102 N. Y. 377; Shannon v. Dodge, 18 Colo. 169; Rockwell v. Lake County, 17 Colo. 118; Ashby v. Sharp, i Litt. (Ky.) 156; Evers v. Sager, 28 Mich. 47; Marquette County v. Ward, 50 Mich. 174; State v. Bradshaw, 10 Ired. (N. Car.) 229; Howell v. Sevier, i Lea (Tenn.) 95; Stump v. Roberts, Cooke (Tenn.) 350; Whiteside v. Hick- han, 2 Yerg. (Tenn.) 358; Duncan v. M'Gee, 7 Yerg. (Tenn.) 103. Where a judgment of reversal by an intermediate appellate tribunal is re- versed on further appeal to a higher court, all the sureties on the under- taking given to secure the first appeal are discharged by the first reversal, as that judgment is obliterated by the final decision, and the further appeal is, in contemplation of law, only a neces- sary step to secure an affirmance in the prior appellate court. Hinckley v, Kreitz, 58 N. Y. 588; Robinson v, Plimpton, 25 N. Y. 484; Gardner v. Barney, 24 How. Pr. (N. Y. Supreme Ct.) 467; Smith v. Grouse, 24 Barb. (N. Y.)433- Waste Where the terms of an un- dertaking on appeal to an interme- diate appellate court render the appel- lant liable for any waste committed "during his possession of the prem- ises," the sureties are liable for waste committed after the determination of the first appeal and while a further appeal is pending to a higher court. Church v. Simmons, 83 N. Y. 264. New Trial Ordered Bond for Costs. Where a judgment is reversed by an intermediate appellate court and new trial ordered, from which order an ap- peal is taken, an undertaking thereon need only cover costs, as there is no judgment existing until the order granting a new trial is reversed. Sea- man -v. McReynolds, 50 How. Pr. (N. Y. Super. Ct.)425. 3. Hinckley v. Kreitz, 58 N. Y. 590; Armstrong's Appeal, 5 W. & S. (Pa.) 352; Burns v. Huntington Bank, i P. & W Pa.) 395; Pott v. Nathams, i W. IO2O Record on Appeal. APPEAL BONDS. Record on Appeal. XXIV. KECORD ON APPEAL. Either the original appeal bond or a properly certified copy should be sent up in the record on appeal, to enable the appellate court to judge of its sufficiency, and the record should show that it has been properly filed. 1 & S. (Pa.) 155; Schurtzel's Appeal, 49 Pa. St. 23; McCormick v. Irwin, 35 Pa. St. in; Parsons v. Birddock, 2 Vern. 608. They may resort to any final lien or equity to which the appellee might have resorted; and of these two sets of sureties on appeal bond, the first set may pay the judgment and enforce the appeal bond against the second sure- ties. Hinckley v. Kreitz, 58 N. Y. 590; Peirce v. Higgins, 101 Ind. 178. The equity of the surety in the prop- erty covered by the judgment lien is superior to that of a purchaser who buys after the execution of the appeal bond. Peirce v. Higgins, 101 Ind. 178. In this case the court said: "The surety in the appeal bond had a right to assume that the judgment bound the land, and that if he was ultimately compelled to pay it, he would be sub- rogated to the rights of the creditor and could seize and sell the land upon which the judgment lien rested. When the appellant purchased, he was bound to take cognizance of the legal rights of the surety. It is a fundamental principle that a party who has full knowledge of the facts is bound to know their legal consequences. Trent- man v. Elridge, 98 Ind. 525; Anderson v. Hubble 93 Ind. 570; 47 Am. Rep. 394; Dodge v. Pope, 93 Ind. 480, vide p. 487; Barnes v. McKay, 7 Ind. 301. The essential thing in such cases as this, and in cases of a kindred char- acter, is knowledge of the facts, for, when this exists, knowledge of legal consequences is necessarily implied." The Execution of a Bond by an Execu- tor or Administrator creates no relation of privity between the sureties and the decedent's estate, and payment by the sureties of the judgment affirmed vests in them no right of action against the estate. Maybury v. Grady, 67 Ala. *I47; Pearson v. Dassington, 32 Ala. 227. 1. Spencer v. Thompson, 24 Ala. 512; Nisbet v. Lawson, i Ga. 275; Felton v. Elliott, 66 N. Car. 195; Mitchell v. Sloan, 69 N. Car. 10; Frank- lin v. Reiner, 8 Cal. 340; Stetson v. Corinna, 44 Me. 29; Leach v. People, 118 111. 157. See APPEALS, Record on Appeal. Certificate of Clerk. Where a certi- ficate of the clerk, that "the appeal has been obtained and bond given," must be presented by the appellee on his motion to dismiss for failure to file the transcript in time, it will not be granted where made upon the tran- script as actually filed without the pro- duction of the certificate. The appel- lee must furnish the evidence required by statute. Kimball Lumber Co. v. Ruge, 26 Fla. 59; West v. Brashear, 12 Pet. (U. S.) 101; Macomb v. Arm- stead, 10 Pet. (U. S.) 407. 1021 INDEX. ABATEMENT OF ACTIONS. See cross references, i. ABATEMENT IN PLEADING. Generally. General denial as a plea in abatement. See DENIALS. By reason of the pendency of another suit. See ANOTHER SUIT PENDING. Definition of pleas in abatement, i. Ancient distinction still exists, 2. Pleas in abatement and pleas in bar ; distinction recognized in equity, 2. Must give plaintiff a better writ, 2. Absence of interest in plaintiff, 2. Pleas divided into two general classes, 2. Distinguished from pleas in bar, 2. Pleas do not go to the merits, 2. Plea denying corporate existence, 2. Kinds of pleas in abatement, 3. Order of pleading different kinds, 3. Usual pleas to the disability of plaintiff, 3. Usual pleas to the action of the writ, 3. Plea for want of proper parties, 3. Most go to the merits of the action, 3. How pleas are considered in modern practice, 3. Joinder of matter in abatement and matter in bar in code answers. 854- To the jurisdiction. Pleas in abatement to the jurisdiction, 3. Objection must be taken by plea or demurrer, 4. When no court has jurisdiction, 3. Denial of jurisdiction to particular court, 3. Service on corporation, 4. Service defective, 4. Fraud in obtaining jurisdiction, 4. False return of process, 4. Too late after mandate to lower court, 4. Citizenship of parties in actions in federal courts, 4. Federal practice distinguished from State practice, 4. Amendment of pleading in court's discretion, 5. Waiver of objection to jurisdiction, 5. Whether too late after determination of demur, 5. Question of jurisdiction not properly raised. Judgment for plaintiff, 5. Raising objection by motion, 5. Setting up objection in notice of defence under general issue, 5. Statute saving objections to jurisdiction, 5. Affinity of justice signing writ, 5. Must show another court having jurisdiction, 6. 102.^5 INDEX. ABATEMENT IN PLEADING. To the Jurisdiction Continued. Must exclude every contrary inference and negative exceptions, 6. Must be certain to every intent, 6. Pleas must be clear, distinct and positive, 6. Showing want of residence, 7. Not sufficient to show facts making jurisdiction discretionary, 7. Plea in abatement of the writ. Necessity for showing jurisdiction in another court, 7. Abuse of criminal process, 8. Residence of defendants. Rule where several defendants, 8. Want of residence. Stating defendant's place of residence, 8. Determination of jurisdiction. At what time, 9. Plea of fraudulent assignment, 9. Prayer to conclude plea, 8. Infancy. Plea or demurrer, 9. Waiver of objection by not interposing plea, 9. Coverture. Objection of marriage taken by plea in abatement or demurrer, 9. Necessary allegations in plea of coverture, 9. Requirement of verification, 9. Plea of coverture not a plea of non-joinder, 9. Capacity to sue. Taking objection by plea in abatement, 10. Admission of capacity by failure to raise objection, 10. Waiver of objection if not taken, 10. Requisites of the plea. Definitions and certainty, 10. Action by assignee for benefit of creditors, 10. Party suing in representative capacity, 10. Plaintiff a corporation, 10. Denial of incorporation, 10. Corporation having ceased to exist, 10. Denial of capacity of corporation, 10. Alien enemy, II. Intervenor not filing bond, n. Failure of corporation to file articles, n. Facts causing incapacity of corporation. Business wound up, II. Answer of guardian ad lit em, n. Denying validity of appointment of receiver, n. Real party in interest. How objection taken, u. Objection taken by answer in Kansas, u. Requisites of such pleas, II. As a plea in bar, 12. Assignment of claim, n. Attorney to have damages, 12. Suit not authorized, 12. Suit not that of plaintiff, 12. Good and bad pleas, 12. Member of trust or combination, 12. Misnomer. At common law, 12. In the United States, 12. Plea in abatement under notice, 12. Waiver of objection not taken, 13. Misnomer of corporation, 13. Misnomer in representative capacity, 13. Application of rule to cases of default, 13. Application of rule in equity, 13. Misjoinder. Method of raising objection, 13. Taking advantage under general issue, 14. Taking objection by answer or demurrer, 14. Plea to several counts, 14. Time for objection, 14. Misjoinder of other defendants, 14. Who can object, 14. Non-joinder. Plea or demurrer, 14. 1024 INDEX. ABATEMENT IN PLEADING. Non-joinder Continued. In actions for torts, i^. Objection as to defendants, 15. Plaintiffs in actions on contract, 15. In equity, 16. Non-joinder of plaintiff's husband, 16. Libel for salvage, 16. Part owners of chattel, 16. Executors and administrators, 16. Application of rule to partners, 16. Partners as plaintiffs, 16. Showing partnership under general denial, 16. Proving knowledge of partnership, 16. Members of association, 17. Joint contractors Charge to jury, 17. Plea good if only part of claim joint, 17. When objection is raised by demurrer, 17. Taking objection on appeal, 17. Taking objection at any stage of action, 17. Overruling demurrer does not prevent plea in abatement for non- joinder, 17. Requisites of plea. Names of parties, 17. Ordinary language sufficient, 18. Showing parties alive and within jurisdiction, 18. Need not allege positively, 18. Stating place of abode, or age of parties, 18. Where omitted parties are executors, 18. Showing interest of omitted party, 18. Plea of no partnership, 19. Tenant in common, 19. Claiming under different titles, 19. As a separate defense, 19. Negativing matter which would be insufficient in replication, 19. Personal discharge of co-promisor, 19. Discontinuance as to one of two defendants, 19. Privilege and non-tenure. Objection should be raised by plea in abatement, 19. Defects in process and proceedings. Taking objection by plea in abatement, 19. Irregularities in proceedings which are not jurisdictional, 20. Variance. How objection raised, 20. Raising objection on appeal, 20. Total departure from writ in declaration, 20. Craving oyer, 20. States where rules as to variance are enforced and where oyer is allowed, 20. Plea should set out originals and make provert of and enroll copies, 20. Service, etc. Taking advantage of defects, 20. Waiver of right to move to quash writ, 21. Must show service defective, 21. Exclusion of contrary inferences, 21. Should show defendant an inhabitant, 21. Enable plaintiff to make better service, 21. Service on agent of corporation, 21. Service on resident of state, 21. Showing by whom writ should be served, 21. False return of sheriff, 21. Taking advantage of defects by motion or writ of error, 21. No authority in person serving, 21. No service on defendants not pleading, 22. Service at wrong time, 22. I Encyc. PI. & Pr. 65. 1025 INDEX. ABATEMENT IN PLEADING. Service, etc. Continued. Privilege of defendant as a witness, 22. Plea should not allege and rely on immaterial matters, 22. Person served not agent of corporation, 22. Service by officer out of office, 22. Action premature. How objection raised, 22. Defence on the merits, 22. Suit before statutory time, 22. Cannot limit the recovery, 22. Matter demurrable if pleaded in bar, 23. Note not due ; pleading in bar, 23. Agreement to extend time, 23. Another action pending. Ground for plea in abatement, 23. Requisites and construction. Pleas strictly construed, 23. Pleas not favored by the court, 23. Correctness of form is matter of substance, 23. Must answer whole case and contain full averments, 23. Bad beginning of plea, 23. Actions accruing, 23. Alteration of plea, 23. Pleading without proper defence, 23. Plea by president of corporation, 23. Pleas must be certain and leave nothing to inference, 24. Anticipating defences. Attending court as a witness, 24, Submission of claim under statute, 24. Must allege assigment bona fide, 24. Facts showing opposing title, 24. Non-residence at time action commenced, 24. Death of plaintiff after filing declaration, 24. Justice of Peace interested in the matter, 24. Notification to holder of legal title, 24. Must anticipate defences, 24. Ratification by agent's act, 25. Application of rule requiring, 25. Duplicity is fatal, 25. Several distinct pleas bad, 25. Issues on two distinct matters, 25. Specifying several particulars, 25. Statute allowing several pleas, 25. Must give better writ, 25. Rules as to requisites for pleas in abatement not obsolete 26. Common-law rules in force in United States, 26. Application of old rules in West Virginia, Missouri, Texas, Minnesota, Connecticut, and Rhode Island, 26. Must give better writ. No authority to sue, 26. No defect shown, 26. Reason of no jurisdiction, 26. No action at all, 26. Setting out title, 26. Matter affecting co-defendant only, 26. Co-defendant not served, 26. Must have proper beginning and conclusion, 27. Amendments not allowed, 26. Prayer. Importance of the prayer, 27. Relief prayer for determines, 27. Plea is bad if prayer is omitted or is wrong, 27. If matter in abatement concludes in bar, it is bad, 27. Indefinite prayer, 27. Matter in bar pleaded in form as abatement, 27. Form of prayer, 28. Where plaintiff demurs to plea, 28. Prayer for disability of plaintiff, 28. 1026 INDEX. ABATEMENT IN PLEADING. Prayer Continued. Defective service on trustee, 28. Prayer for affirmative relief, 28. Praying judgment of the declaration only, 28. Where suit is commenced by bill, 28. Abatement in part, 28. Several defendants, 28. Prayer in abatement of attachment, 28. Signature. Signature by counsel, 28. Affidavit. Requirement of verification, 28. Statute of Anne, 29. Benevolent association. Misjoinder, 29. Rule in Connecticut and Rhode Island, 29. Requirement of. may be waived by plaintiff, 29. Requisites of affidavit, 29. Effect of defective affidavit, 29. Alleging truth in substance and fact, 29. Affidavit to plea of non-joinder, 29. Should be coextensive with plea and leave nothing to inference, 29. Error in addition, 29. Residence of co-contractor, 29. Variance from the plea, 30. Entitling affidavit in the cause, 30. Stating addition of the defendant, 30. Made by third party or attorney, 30. Sworn to before defendant's attorney, 30. Sworn to before declaration delivered, 30. Sworn to on same day, 30, Judgment and trial. Proper judgment where defendant succeeds, 30. Whether plea is to writ or declaration, 30. One of two defendants, 30. Plaintiff cannot reply, 30. Where the plaintiff succeeds, 30. Defendant's right to plead over, 30. Frivolous plea, 30. Order to plead over instanter, 30. Trial by record, 30. Nol pros if plaintiff does not reply, 31. Matter pleaded puis darrein continuance ; final judgment, 31. Wrong prayer ; judgment final, 31. Final by statute ; Massachusetts, 31. Judgment for plaintiff on issue of fact, 31. Courts of United States, 31. Statute allowing pleas in abatement and bar, 31. Plea in bar after judgment against defendant, 31. Demurrer after issue found against plea, 31. Final judgment on plea in review, 31. Trial involving question of records, 32. Attack on declaration by defendant defeated on plea, 32. Bad plea ; signing judgment, 32. Burden of sustaining plea, 32. Whole plea not proved, 32. Trial of plea involving question of records, 32. Burden of proof ; right to office, 32. Trial of variance between writ and declaration. Question for court, 32. Trial of plea of another action pending, 32. Waiver of plea. Right to plead. in abatement lost or waived, 32. By pleading to the merits, 32. Due order of pleading, 33. Death before action brought, 33. Subsequent plea to the merits, 33. 1027 INDEX. ABATEMENT IN PLEADING. Waiver of Plea Continued. Right reserved to appeal waived, 33. Filing affidavit of merits, 33. Going to trial on the merits, 34. Pleading over after demurrer, 34. Pleading out of order, 34. Plea in bar after plea in abatement, 34. Withdrawing plea to merits, 34. Power of court to allow plea in abatement after plea in bar, 34. What is withdrawal of former plea in bar, 34. Withdrawal of plea in bar. Pleading not allowed although in due time, 34. Exceptions to rule that matter in abatement must be first pleaded, 35. Where pleas in abatement and pleas in bar are allowed at the same time, 35. By laches or agreement, 36. After imparlance, 36. Proceeding in cause, 36. Plaintiff's demurrer, 36. Ignorance of ground of abatement, 36. After removal of cause to another court, 36. By demurring, 36. Puis darrein continuance. Matters arising after issue, 36. Supplemental answer, 37. When matter should be pleaded, 37. Pleas at trial and after verdict, 37. Waiver of other pleas, 37. Certainty of such pleas, 38. Judgment on such pleas, 38. Replication, etc. Rules applicable to plaintiff, 38. Defendant's set-off or counter-claim, 38. Demurrer, 39. Defeating plea without replication, 39. Waiver of defects by plaintiff, 39. In equity. Same rule as at law, 40. Definiteness and certainty of pleas, 40. Pendency of foreign suit, 40. Objections not raised or waived, 40. Suit prematurely brought, 40. Stay of one suit where two are pending, 40. Debt not due, 40. Insanity of plaintiff, 41. Proper parties not brought in, 41. Absence of interest in plaintiff, 41. Plaintiff's standing in court, 41. Adequate remedy at law, 41. Withdrawal of answer to file plea, 41. Demurrer ; remedy at law, 41. ABBREVIATIONS. General rule as to abbreviations, 42. Of what courts will take notice, 42. Within judicial knowledge, 43. Judicial notice of official character, 43. Initials of proper names, 43. Proper names. Distinction between vowels and consonants, 43. Judgment against person designated by initials, 44, Writ against defendant described by initials, 44. Indictment against person described by initials, 44. Bond subscribed without using full name, 45. Affidavit subscribed by use of initial, 45. Objection waived by judgment, 45. Objection cured by answer, 45. 1028 INDEX. ABBREVIATIONS Continued. Objection cured by verdict, 45. Identification of party to suit, 45. Amendment where only initial is used, 45. Publication of summons describing party by initial 45. Middle initial no part of name, 45.' Judicial notice of contraction of names, 46. Prefixes and suffixes as parts of names, 46. " Mrs." and " Mr." as parts of names, 46. Surnames with prefix, 47. Words denoting periods of time, 47. Amount and description, 47. In tax judgments, 48. In deeds, 48. In indictments and description of land, 48. Miscellaneous words, letters and symbols, 48. ABDUCTION. Definition, 50. Form of indictment at common law, 50. Sufficiency of indictment under modern practice, 51. Allegations of non-consent of parent, 51. Allegation of custody from which female was taken 51. Allegation of age of female, 51. Charge of malice, 51. Allegations as to intention, 51. For the purpose of prostitution, 51. Stating that taking was for lucre, 52. Surplusage in indictment, 52. Joinder of counts, 52. Instruction defining different kinds of abduction 52. Indictment containing distinct offences, 52. ABIDING THE EVENT. Definition, 53. Agreement to perfect reference, 53. Bond in ne exeat, 53. In arbitration bonds, 53. Bond to appear and abide order of court, 54. Abiding equity decision in partition suit, 54. When each party succeeds in part, 54. Word "event" means result, 54. Order for new trial, 54. Witness interested in event, 54. Stipulations and agreements, 54. Power of attorney to stipulate that one action shall abide event of another, 54. Power of specia counsel, 54. Partition suits in other states, 54. Form of stipulation, 55. Defence common to two actions, 55. Power of attorney to bind infant, 55. Meaning of words in stipulations, 55. Stipulation in different forms, 55. Stipulation in actions of ejectment, 56. Stipulation where two actions on covenant were consolidated, 56. Stipulation as to decision of appellate court, 56. Stipulation as to repeal of statute pending action, 56. Stipulation to abide by " issue," 56. Amending pleas but not changing issue does not affect stipulation, 56. Stipulation to "await," 57. Married woman bound by stipulation, 57. Meaning of words in bonds and recognizances in criminal cases, 57. Bonds and recognizances in civil actions, 58. 1029 INDEX. ABIDING THE EVENT Continued. Performance of judgment. 58. Continuous appearance, 58. Compliance with order or decision of court, 58. Costs to abide the event, 59. Costs to prevailing party, 59. Costs on final disposition of litigation, 59. Costs where new trial is granted, 59. Costs to appellant or respondent, 60. Costs of intermediate appeal, 60. Statute as to costs controls, 60. Costs where there is a test action, 61. Funds in court to abide event, 61. Funds in interpleader proceedings, 61. ABORTION. Definition, 62. Form of indictment following statute, 62. Certainty in indictment, 63. Allegation of taking medicine, 63. Indictment showing kind of wound, 63. Use of term "womb" in indictment, 63. Description of person. Omission of name, 63. Not necessary to allege that offence was committed on a " woman ' 63. Allegation that offence was " maliciously and feloniously " com- mitted, 63. Allegation of pregnancy, 63. Words equivalent to pregnancy, 63. Omission of allegation of pregnancy, 63. Allegation of death, 63. Allegation of pregnancy not necessary in indictment for attempt, 63. Allegation of intent, 64. Inference of intent from other allegations, 64. Allegation of intent to cause miscarriage, 64. Omission to aver intent, 64. Specifying means; naming medicine, 64, Allegation that medicine was administered, 64. Finding of character of drug by jury, 64. Precedents of indictments, 64. " Describing instruments used, 64. Exceptions must be negatived, 64. Manner of negativing exceptions, 65. Sufficient and insufficient negative allegations, 65. Charging abortion and manslaughter in one count, 65. Joinder of several counts, 65. Specifying different means in different counts, 65. Different counts; different descriptions of same offence, 65. ACCESSORIES. Generally. Definition of accessories before and after the fact, 66. Definition of principal in first and second degree, 66. Principal in the second degree, 66. Principal in second degree charged as principal in first degree, 67. Joinder of principal in second degree with principal in first degree, 67. Form of indictment of principals in second degree, 67. Showing presence of principal in second degree, 67. Before the fact. Must be indicted as such, 68. Form of indictment, 68. Two counts, 68. Indicted alone, 68. Necessary averments where accessory is indicted alone, 68 Joinder with principal, 68. Principal must be convicted, 68. Verdict against accessory, 69. INDEX. ACCESSORIES. Before the fact Continued. Accessory to several defendants, 69. After the fact. Joinder with principal, 69. Averment of knowledge, 69. Allegations of manner, 69. Surplusage in indictment, 69. Acquittal of principal, 69. Distinction abolished. General doctrine, 69. Accessory may be charged as principal, 70. May be treated as accessory, 70. Distinction not abrogated, 70. Punishment the same, 70. Accessory after fact not to be charged as principal, 72. Statute does not affect accessory after the fact, 72. Indictment as accessory and conviction as principal, 71. Indictment as principal and conviction as accessory, 71. Treating defendant as either principal or accessory, 71. Evidence must show principal guilty, 71. Principal need not be first convicted, 71. Separate and single counts, 71. Charging as both principal and accessory, 71. Statutory allegation, 71. Name of principal, 71. Showing that principal committed offence, 71. Alleging offence when accessory treated as such, 70. When necessary to set out aiding and abetting, 70. How to allege offence when accessory treated as principal, 70. ACCORD AND SATISFACTION. What is plea of accord and satisfaction, 73. May be pleaded in all actions, 73. Plaintiff's evidence supplying place of plea, 74. Sham plea, 74. Directions for pleading, 74. Need for special plea, 74. Must be specially pleaded under the codes, 74. Giving evidence under general issue, 74. Motion to dismiss appeal, 75. Matter held an accord and satisfaction, 75. Not interfering with assignment, 75. Instruction to jury, 75. Fact treated as an issue, 75. Agreement of composition, 75. May be shown in appellate court, 75. Pleaded puis darrein continuance, 75. At what time to be pleaded, 75. Form of plea under the codes, 76- At common law, 76. Verification of the plea, 76. Alluding to accord and satisfaction in testimony, 76. Court may require plea to be made within time limited, 76. Lacking averment of satisfaction, 77. Ambiguous plea, 77. Time of delivery of property, 77. What is sufficient allegation, 77. Immaterial variance, 77. Equity of redemption, 77. Money paid in goods, etc., 77. Amount stated under videlicet, 77. Necessary allegations in plea, 77. Allegation of value, 77. Allegation of acceptance, 77. No presumption of acceptance, 78. 1031 INDEX. ACCORD AND SATISFACTION Continued. Allegation of mistake, 78. Replication to plea, 79. Affidavit of defence, 79. Executing new bond to new partnership, 79. Courts liberal in construction, 79. Release of equity of redemption, 79. Plea as a mere legal conclusion, 80. Allegation that claim was " satisfied and discharged," 80 To whom satisfaction was made, 80. Receipt of sum on account, 80. Insufficient allegations, 80. Denying conveyance of land, etc., 80. Reply setting up facts nullifying plea, 80. Pleading matter with nul tiel record to action on judgment, 8l. Pleas construed, 81. Execution levied, 81. Matter neither accord nor satisfaction, 81. All elements must be embodied in plea, 8l. Answering all counts in declaration, 81. Tender accompanying plea, 82. Satisfaction pro tanto, 82. Question for jury, 82. Applying doctrine of estoppel to plea, 82. Admission of allegations in declaration, 82. Filing supplemental plea to accord is ratification, 82. Equity will not assist where opportunity has been had to plead accord, 82. ACCOUNTS AND ACCOUNTING. Common law action. Generally fallen into disuse, 84. When it lies; privity, 84. For a tort, 84. Against guardian or bailiff, 84. Against joint tenants and tenants in common, 84. Running account between merchant and broker, 85. Part owners of vessels, 85. Executors and administrators, 85. Partnership affairs, 85. The declaration form, 85. Necessity of declaration, 85. Allegations of receipt, 85. Joinder of counts, 86. Different counts for same cause, 86. Prayer for judgment, 86. The plea ; when to be filed, 86. What defendant should plead, 86. No general issue, 86. Plea that defendant was never bailiff or receiver, 86. Plea that defendant had fully accounted, 86. Plea of " nothing in arrear," 86. Plea of release, 86. Plea of statute of limitations, 86. Judgment quod computet, 86. Necessity of, 87. Opening judgment of quod computet, 87. Proceedings before the auditors, 87. Final judgment; upon what based; form, 87. Writ of error upon final judgment, 87. Execution on final judgment, 87. Account stated. Definition, 87. Inserting count in assumpsit, 87. Complaint or declaration, 88. 1032 INDEX. ACCOUNTS AND ACCOUNTING. Account stated Continued. Amendment of complaint, 88. Allegation of assent to settlement, 88. Failure to show account stated but showing right to an accounting, 88. Must be declared on as such, 88. Answer or plea, 89. Denial and non-assumpsit, 89. Defence that action is premature, 89. Pleading fraud as a defence, 89. Defence of error or mistake, 89. Defence must be pleaded, 89. Bill of particulars, 89. Allegations of breach, 89. Actions on accounts. Particularity in complaint, 90. Filing copy of account, 90. Itemized account, 90. Statutory provisions as to pleading, 90. Pleading by copy, 90. When pleading by copy may be adopted, 90. What constitutes an " account," 90. Account annexed must be specific, 91. Allegation that account is "due," 91. Remedies for defective accounts, 91. Probated accounts, 91. Meaning of " account," 91. Petition or declaration on probated accounts, 92. Torts not subject of probated account, 92. Declaration must state that account is probated, 92. How issue made up, 92. The affidavit, 92. Allegation that account is "due," 92. Counter-affidavit, 93. New affidavit, 93. Resting case on defective affidavit, 93. Supplemental petition, 92. Failure to object, 93. What defence can be made, 93. Accounting in equity. Equity jurisdiction in cases of accounts, 93. Basis and extent of jurisdiction, 93. What must be alleged to give jurisdiction, 93. Concurrent jurisdiction of law and equity, 94. Jurisdiction in cases of mutual accounts, 94. Under the codes of procedure, 94. Injunction, 95. Test of equity jurisdiction, 95. Jurisdiction where account is not mutual, 95. Jurisdiction where accounts are complicated, 95. Jurisdiction in cases of fiduciary relation, 96. Equity jurisdiction. When plaintiff will be relegated to his remedy at law, 96. Bill or complaint, 97. Petition or bill must be definite and certain, 97. Bill must be framed on definite theory, 97. Specification of items in bill or complaint, 97. Judgment must accord with complaint, 97. Plain case must be made in bill, 97. Bill against devisees, 98. Necessary allegations in bill or complaint, 98. Unnecessary allegations, 98. Averment of indebtedness, 98. Superfluous averments, 98. Allegation of demand, 98. 1033 INDEX. ACCOUNTS AND ACCOUNTING. Accounting In Equity Continued. Offer in bill to pay balance which may be found due, 98. Requisites of bill in case of ignorance and fraud, 98. Sufficiency of denials, 99. Cross-bill. Necessity for filing, 99. Answer of the defendant, 99. Prayer in the bill or complaint, 99. Prayer in determining duplicity, 99. Prayer for general relief, 99. Prayer for dissolution of partnership, 99. Prayer governs decree, 99. Prayer for discovery, 99. Plea of account stated, 100. Manner of setting out account in answer, 100. Motion by plaintiff to have inspection of documents where answer does not set out account, 100. Duty of defendant to set out account in answer, 100. Plea of stated account; amending the bill, 101. Stated account given by answer, 101. Plea of account stated supported by answer, 101. Requisites of plea of account stated, 101. What may be pleaded as a stated account, 101. Decree that account shall be taken, 102. Costs discretionary, 102. Disposing of matters in bar before reference on account stated is ordered, 102. Setting down for argument a plea of accounts stated, 102. Reply surcharging and falsifying the plea, 102. Plea of account stated. Under the codes, 102. Appellate proceedings, 103. Dismissal after decree for account, 103. Interlocutory decree not appealable, 103. Frame and scope of the decree, 103. Court may take account, 103. Proper parties, 104. Parties in suit for partnership account, 104. Reference to master to inquire as to proper parties, 104. 1 Beneficiaries as proper parties, 105. Assignees as proper parties, 105. Stockholder's suit, corporation as necessary party, 105. Waiver of parties. Some accounted with, 106. Waiver of parties. Method of waiver, 106. Unnecessary parties, 106. Waiver of requirement of necessary parties, 106. Plaintiff taking issue by reply, 107. Annexing copy of account to answer, 107. Parties' liability to account severally, 107. Proceedings to impeach an account ; the bill or complaint, 107. ACTIONS. See ABATEMENT. Joinder of actions. See JOINDER OF ACTIONS. What is an action. Definition, no. "Suit," "cause, "and "action," no. Suit in equity, no. Legislative meaning, no. As terms used in private contracts, in. Federal removal acts, 112. Probate proceedings, 112. Petition by executor or administrator to sell land, 112. Proceedings against executors and administrators, 112. Special proceedings, 112. Street and highway proceedings, 113. INDEX. ACTIONS. What is an action Continued. Partition proceedings, 113, Certiorari, prohibition and quo ivarranto, 113. Proceedings by or against attorneys, 113. Attachment proceedings, 113. Mandamus, 113. Condemnation proceedings, 114. Proceedings to recover dower, 114. Lunatics, trustees and guardians, 114. Vacating, setting aside and impeaching judgments, 114. Divorce and alimony proceedings, 114. Habeas corpus, 114. Drainage proceedings, 114. Auditing commissioner's accounts, 115. Summary proceedings to recover land, 115. Arbitration and judgment, 115. Proceedings on transcript of a justice's judgment, 115. Compelling heirs to perform ancestor's contract, 115. Proceedings to punish referee, 115. Prosecuting error, 115. Proceedings for contempt, 115. Order declaring banking association insolvent, 115. Impeaching decree for fraud, 115. Proceedings to make new parties to judgments, 115. Refunding tax, 115. Proceedings to charge stockholders, 115. Supplementary proceedings, 115. Forcible entry and detainer, 116. Proceeding to recover penalty, 166. Interpleader, 116. Vacating assessment, 116. Damages for erection of mill, 116. What is cause of action. Definition, 116. Combination of right and delict, 116. Delict alone as cause of action, 117. Remedy alone, 118. In the construction of statutes, 118. When is an action commenced. General rule, 119. Rules in various states, 119-141. Abolition of forms of action. Code provisions, 141. Common law distinction preserved at first, 142. Distinction between actions at law and suits in equity, 142. Code construed in light of its real spirit, 143. Substantive distinction preserved, 144. Code of procedure not a substantive code, 144. No new causes of action created, 145. Rights independent of remedies, 145. Civil action as substitute for all former proceedings, 145. Character of action. How determined under the codes, 146. Allegations of complaint to determine character, 146. Wholly a question of construction of complaint, 146. Prayer for relief not invoked, 146. When prayer may be consulted, 147. Form of summons, 147. Actions ex contractu and ex delicto, 147. Whether action is for tort or on the contract, 147. Waiving tort, 148. Alleging that defendant undertook and promised, 148. Insertion of legal conclusions, 148. Sale of property, 148. Converting action ex delicto into one ex contractu, 148. Judgment must follow pleadings, 148. INDEX. ACTIONS Continued. Splitting causes of action. Single cause of action cannot be split, 148. Foundation of rule against splitting, 149. Taking judgment by mistake, 150. Rule against, not a technicality, 150. Exhausting possibilities of suit, 150. Justice of rule questioned, 150. Application of rule in equity, 150. What constitutes an entire cause of action, 150. Contracts generally, 151. Money lost at gaming, 151. Indemnity bond, 151. Claim for board, 151. Taxes, 151. Accounting, 151. Attachment bond, 151. Common agent, 152. Separate pieces of property, 152. Independent stipulations in same contract, 152. Breaches of several covenants in same instrument, 153. Goods sold at one time, 153. Separate sales, 153. Sales on credit, 153. Cases not harmonious, 152. Parsons' rules for determination, 152. Continuous account of book entries, 154, What constitutes an account, 154. Credit on some items of running account, 154. Separate accounts, 154. Suits for less than entire account, 154. Claims payable in instalments, 155. Assignment of different instalments, 155. Divisible contract, 155. Instalments of rent, 155. Separate promissory notes, 156. Judgments, 156. Separate leases, 156. Creditor's bill, 156. Error in entry of judgment, 156. Services rendered, 157. Servant wrongfully discharged, 157. Instalment of servant's wages, 157. Insurance policies, 157. Several persons insured by same policy, 157. Promise to pay interest, 158. Instalments of interest due, 158. Assignments of causes of action arising upon contract, 158, Subrogation, 158. Assignment of part of entire demand; parties, 158. Collateral securities, 158. Fraud, 158. Liens; lien for debt, 158. Action on guaranty, 158. Torts, 159. Test to be applied in cases of tort, 159. Single tort gives only one cause of action, 159. Fraud as an entirety, 160. Discrimination by carrier, 160. Same transaction, 160. Creditor's bill against several charged with fraud, 160. Seizing and converting chattels, 161. Distinct frauds, 161. 1036 INDEX. ACTIONS. Splitting causes of action Continued. Trespass on land, 161. Acts done by same trespass are indivisible, 161. Assault and battery, 161. Trespassing of cattle, 161. Distinct trespasses, 161. Replevin and trover, 161. Fraud and concealment by defendant, 162. Forcible entry and detainer, 162. Waste, 162. Specific performance, 162. Claims with reference to real property, 162. Ejectment, 162. Slander, malicious prosecution, false imprisonment, 162. ADDITIONAL ALLOWANCES OF COSTS. General principles. Costs are creation of statute, 211. Intendment of statute, 212. Discretion of courts, 212. Liberal construction, 212. In surrogates' courts, 212. Provisions of code. New York code of procedure, 212. Allowance as a matter of right, 213. Discretion of court, 213. Allowance to plaintiff only, 213. Recovery of judgment necessary, 213. Partition of real property, 213. Foreclosure of mortgages, 213. Attachment cases, 213. Determination of claim to real property, 213. Adjudication upon written instrument, 213. No order necessary, 214. Where action is settled before judgment, 214. In case of new trial, 214. Recovery of costs. 214, Allowance additional only, 214. Percentages to be allowed in different cases, 214. Discretibnary allowances, 215. Where defence has been interposed, 215. What amounts to a defence, 215. Party must be successful, 215. Difficult and extraordinary cases, 215. Action may be legal or equitable, 215. Foreclosure proceedings, 215. Partition suits, 215. $2000 the limit, 215. Statutory amount cannot be exceeded, 215. The application. When made, 216. At the trial, 216. After tender, 216. After trial, 216. After judgment, 216. In action against executors, 216. Judge residing in another district, 217. In equity cases, 217. To what court made, 217. To the trial court, 217. Necessity for formal notice, 217. Costs of motion, 218. Where the trial is before a referee, 218. Affidavit, 218. Referee's certificate, 218. Review by another judge. 218. 1037 INDEX. ADDITIONAL ALLOWANCES OF COSTS Continued. Appeals. Appeal from order granting or refusing, 218. Appeal to general term, 218. Exception not necessary, 219. General term remitting case back, 219. Appeal to court of appeals, 219. Jurisdiction of court of appeals, 219. What the court of appeals will review. Merits, 219. Remitting case back, 219. Reviewing discretion, 220. When granted. Recovery of ordinary costs essential, 220. Litigation must be ended, 220. Case never brought to trial, 220. Dismissal of case owing to plaintiff's non-appearance, 220. Allowance on a second trial, 220. Right is perfect when verdict is rendered, 220. Injunction suits, 221. Judgment upon demurrer, 221. Plaintiffs submitting to nonsuit, 221. In doubtful cases, 221. Where there is stipulation as to costs, 221. Submission upon statement of facts, 221. Upon agreed cases, 399. Subject-matter must possess pecuniary value, 221. Illustrations of actions where subject-matter has no pecuniary value, 222. Reference to determine value, 222. Where court exercises discretion, 222. Interpleader action, 223. Stipulation of attorneys, 223. Action for construction of wills, 223. Partnership action, 223. Right to have determination of value, 223. Taking judgment for want of affidavit of merits, 224. On a felonious answer, 224. Issue solely between defendants, 224, Defendant making tender, 224. Defendant confessing judgment, 224. Recovery of sum much less than claimed, 224. No merits disclosed, 224. Imposing terms, 224. For purpose of punishment, 224. Where it would work hardship, 224. Party joined at his own request, 225. Recovery on technical grounds, 225. Unnecessary action, 225, Defendants unnecessarily severed, 225. Against executors, 225. Plaintiff suing in forma pauperis, 225. Cases neither difficult nor extrcordinary, 225. Where both parties failed, 225. Special proceedings, 225. Feigned issues, 225. Distribution in foreclosure cases, 225. Mechanics' liens, 225. Condemnation proceedings, 225. Where defendant is entitled, 226. When refused to defendants, 226. On death of plaintiff after verdict, 226. In case of discontinuance, 226. Defendant offering to allow judgment, 226. On counterclaim, 226. 1038 INDEX. ADDITIONAL ALLOWANCES OF COSTS. When granted Continued. Difficult and extraordinary cases : meaning of term, 226. Long trial, 227. Amount involved, 227 . Discretion of court, 227. No general rule, 227. Words construed in their ordinary meaning, 227. Immaterial considerations, 228. Joinder of several causes of action, 228. On discontinuance, 228. The old code, 228. To plaintiff's attorney, 228. Terms, 228. Before trial, 228. Offer to allow judgment, 229. Tender, 229. After discontinuance, 229. Only one allowance, 229. Interlocutory judgment. Partition suits, 229. Judgment set aside, 229. Interlocutory judgment. Partnership suits, 229. Second trial of ejectment suit, 230. How computed. Basis of allowance, 230. Amount of claim or recovery is the limit, 230. Subject matter in action relating to land, 230. Discretion of special term, 230. Limit in foreclosure, 230. Disbursements not included, 230 Limits of allowance, 230. Value of bank stock, 231. Attachment suit, 231. Proof of value received, 231. In action for royalties, 231. In action by tax-payer, 231. Trade-marks, 231. Proper basis of value, 232. Amount recovered, 232. Amount claimed, 232. Defendant's allowance, 232. Amount of counterclaim, 233. Subject-matter involved, 233. Personal actions, 233. Real property, 233. Counsel's stipulation, 233. ADDRESS. Chancery practice. What is address, 234. Form of address of bill, 34. Chancellor as a party, 234. Residence or abode of complainant, 235. Remedy for failure to state complainant's address, 235 Abode of infant or lunatic, 235. Code practice. Address of attorney, 236. Provisions of New York code, 236. Printed address of attorney, 236. Failure to give attorney's address. Amendment, 236. Written address of notice of motion, 236. Compelling attorney to disclose his address, 236. Attorney charged with costs for failing to furnish client's address, 237- ADJOURNMENTS. Generally. Defined, 238. 1039 INDEX, ADJOURNMENTS. Generally Continued. Adjournment and continuance distinguished, 238. Additional term, special term and adjourned term, 238. Meaning of " adjourn," 238. Day adjourned to is first day of term, 241. Power to adjourn. Inherent power, 239. Construction of statutes, 239. Assigning reason for adjournment, 239. Length of adjournment, 239. Discretion as to extent, 240. Long adjournments not favored, 240. Statute limiting time. Louisiana, 240. From day to day. Sunday, 240. " Term " and " session," 240. Who may order. Judicial power. Ministerial officers, 240. Statutory provisions, 241. Sheriff, or clerk, or single judge, 241. Court beginning session at time or place other than that prescribed, 241. Adjournment to await a quorum, 241. Court not meeting at prescribed time and place, 241. Absent judge, 241. Provisions of statute held directory, 242. Substantial compliance with statute, 242. Statute liberally construed, 242. Notice of adjournments, 242. Statutory orders of adjournment by judges in court, 242. Cases in Georgia, 243. Telegraphic order, 243. Sheriff exceeding his authority, 243. Place of adjournment. Statute naming place as mandatory, 243. Anywhere within limits of town, 243. Consequences of adjournment. Distinction between adjournment sine die and adjournment to a day certain, 243. Term cannot be reopened after final adjournment, 243. Adjourned term and new special term, 244. Action on appeal brought at adjourned term, 244. Prolongation of terms adjourned, 244. Power of court to meet after day fixed, 245. Vacating judgment at adjourned term, 245. Presumption as to whether special or adjourned term, 245. Failure of court to meet on adjourned day, 245. Power of court not destroyed. 245. Duration of adjournment matters not, 245. Existence of court during adjournment, 245. Power over record of past business, 245. Meeting of court before day fixed, 245. Instructions, etc., during recess, 246. Power of criminal defendant to waive irregularity, 247. Justices' courts, 247. Referees and arbitrators, 247. Supervision of court of referee's action, 248. Court interfering with discretion, 248. Quasi-judicial officers. Inherent power, 248. Presumption of legality, 248. Unreasonable and irregular adjournments, 248. Review of discretion, 248. Board of road reviewers, 248. Board of school inspectors, 248. Commissioners for taking depositions, 248. Court for trial in election case, 248. Town meeting, 248. 1040 INDEX. ADJOURNMENTS. Quasi-judicial officers Continued. Town board, 248. Board of commissioners, 248. Executive council, 248. Commissioners for condemning land, 248. ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS. ADMIRALTY. Taking objection of the pendency of another suit. See ANOTHER SUIT PENDING. Definition of admiralty practice, 251. Nature of admiralty practice, 251. Admiralty courts. District courts, 251. District judge sitting alone, 251. Circuit court of appeals and supreme court, 252. Different kinds of suits. In personam and in rem, 252. Suit in personam, 252. Security on suit in penonam, 252. Treating in rent proceeding as one in personam, 252. Suit in rem, 253. Maritime liens as basis of suit, 253. The libel. Suit commenced by libel, 253. Preferable form of suit, 253. Libel of review, 253. Libel should show jurisdiction, 253. Notice of pendency of suit, 253. Time of filing libel, 253. Filing of libel in clerk's office, 254. Where several parties are interested, 253. Form and contents, 254. Stating that the property is within district, 254. Names, occupations and residences of parties, 254. Technical rules of common-law pleading, 253. Penalty under passenger act, 254. Libel for loss, 254. Suit on charter party, 254. Owner of goods injured by collision, 254. Suit by non-resident, 254. Misjoinder of parties, 254. Identification of goods, 254. Alleging tender, 254. Offence created by statute, 254. Contrary to form of statute, 254. Grounds for demanding penalty, 254. Collision libel, 254, 255. Libel for salvage, 254. Libel by material man, 255. Charging defendant as common carrier, 255. Cause of action set forth in distinct articles, 255. Prayer for relief, 255. In suit for possession, 255. For sale or limitation of liability, 255. Verification, 255. By attorney or agent, 255. Each party may require answer under oath, 255. Authority of attorney to verify, 255. Who may take oath, 255. Failure of libellant to sign process, 255. Interrogatories. By libellant, 255. Defendant is bound to answer, 256. Inspection of documents, 256. By defendant, 256. i Encyc. PI. & Pr. 66- J4i INDEX. ADMIRALTY. Interrogatories Continued. Penalty for failure to answer, 256. Amendments. Matters of form, 256. Changing nature of action, 256. Changing entire nature of claim, 256. Substitution of claimants, 256. Matters of substance, 256. Carrying claim back, 256. Supplemental pleadings, 256. On appeal, 256. Imposing terms, 257. Libellant's stipulations for costs. Libellant must file, 257. What stipulation consists of, 257. Amount of stipulation, 257. When not required, 257. W T aiver, 257. Joinder of rem and personam proceedings. Right to join, 257. Where not forbidden by rules, 258. Suits on charter parties and freight contracts, 258. Fifty-ninth admiralty rule, 258. One suit as bar to another. 258. Staying of one suit until hearing of another, 258. Foreign attachment. What is foreign attachment, 258. Antiquity of practice, 259. Modern practice, 259. Failure to find goods and chattels. Attaching credits and effects, 259. Object of practice, 259. Non-residence. Service of process, 259. Extent of marshal's duty to make search, 259. Necessity of non-residence, 259. Garnishment of credits and effects in hands of third parties, 259. Marshal need not lose time in searching for goods, 260. Garnishment process, 260. Disposal and ownership of property, 260. Defendant's default. Order for sale of goods, 260. How defendant may obtain release of goods, 260. Issue as to ownership of credits and effects, 260. Where garnishee need not appear, 261. Garnishee denying that defendant is owner, 261. Trial of issue as to ownership, 261. Mesne process. Writ issued by clerk, 261. Warrant of arrest, 261. Detention of vessel on untenable claim, 261. Constructive notice of pendency of suit, 261. Seizure necessary to give court jurisdiction, 261. Duty of marshal, 261. Direction to marshal, 261. Signed and tested, 261. When defendant is found and served, 262. Invalid state attachment, 262. Exempt property. Certain property non-seizable in rem, 262. Property held by sheriff, 262. Property in hands of receiver, 262. Possession by receiver. Contempt, 262. Property in hands of collector of port, 262. Government property, 262. State or municipal property, 263. Canal boat not to be liable for wages, 263. Return of process. Time for return, 263. Return days, 263. Return day. Call in open court, 263. In possessory suits, 263. 1042 INDEX. ADMIRALTY. Return of process Continued. In suits in personam, 263. In suits in rent, 263. Return as to attachment, 263. False return, 263. Contents of return, 263. Alias process, 263. Respondent's duty to appear, 263. Failure to appear. Default, 263. Default of defendant. Hearing ex parte, 264. Respondent need not wait until return day, 264. Appearing and filing claim and stipulations, 264. Respondent's claim, what is, 264. Claim by master in behalf of owners, 264. Contents of respondent's claim, 264. Respondent's stipulations for costs, 264. Stipulations for release, 265. Vessel never in custody, 265. Waiver of defects, 265. In prize cases, 265. Owner of cargo, 265. Goods in bonded warehouse, 265. Taking proceeds from registry, 265. Form of undertaking, 265. Ordinary penal bond, 265. Bonds as substitute for property, 266. Stipulation for value, 266. Amount of, 266. Interest, 266. Condition of bond, 266. Waiver and appearance, 266. Claim equal to or greater than value of vessel, 267. Appraisal of vessel, 267. Bond to marshal. Form, 267. Rights and liabilities of sureties, 267. Judgment against sureties, 267. Justification of sureties, 268. Increasing and reducing security. Discretion of court, 268. Reseizure of pioperty, 268. Sale of perishable property, 268. Tender by respondent. Imposing costs on libellant, 268. Sale on return, 269. Publication of notice of sale, 269. Short order of publication, 269. Exceptions to libel. Peremptory exceptions, 269. Must state the insufficiency, 269. In collision cases, 270. Striking exceptionable matter from pleadings, 270, When to be taken, 270. What may be set up, 270. Practice to unite with answer, 270. Dilatory exception, 270. Amendment of libel, 270. Hearing of exception, 270. For scandal, surplusage and impertinence, 270. Petition under rule 59. One of respondent's pleadings, 270. In collision cases where only one respondent is sued, 270. Other cases than collision, 271. Answer. Time of filing, 271. Contents, 271, Requisites and sufficiency, of, 271. Address to judge, 271. 1043 INDEX. ADMIRALTY. Answer Continued. Setting up affirmative defence, 271. Prayer for relief, 271. New facts alleged, 272. In prize cases, 272. As evidence, 272. Objections for insufficiency, 272. Separate answers, 272. Exceptions and verification, 272. Counterclaim and cross-libel. Counterclaim in answer, 273. Filing cross-libel, 272. Proceeding independently by original suit, 273. Setting up counterclaims by cross-libel, 273. When necessary, 273. On what founded, 273. When not necessary, 273. Notice of filing, 273. Dismissal of libel, 273. Security by respondents, 273. Original libel stayed until second given, 273. Issue. When cause is issued, 274. Note of issue, 274. Placing cause on the calendar, 274. Delay in bring cause to hearing, 274. Trial. Method of trial, 274. Commissioners to take testimony, 274. Reason for reference, 274. Summing up and submitting cause, 274. Witnesses present in court, 274. Opening cause and calling witnesses, 274. Right to open and close, 274. Nonsuit, none in admiralty, 274. In collision cases, 274. Judgment, 275. New trial, rehearing, etc., 274. Court reserving decision, 274. Interlocutory decree and reference. Determining amount of damages, 275. Order of reference, 275. What is interlocutory decree, 275. Serving copy, 275. Appearing before commissioners, 275. Proceeding before commissioners, 275. Commissioners' report, 276. Exceptions to report, 276. Hearing on exceptions, 276. Confirming report, 276. Confirmation nisi and absolute, 276. Principles upon which damages are assessed, 276. Taxation of costs. Taxation by the clerk, 276. When taxed, 276. Entering costs in final decree- 276. Final decree. What is, 276. Proper form, 277. Several libellants, 277. Decree pro confesso, 277. Damages for personal injuries, 277. Evidence in action thereon, 283. Performance by stipulators, 277. When damages are divided between two vessels, 277. In cases of cross-libels for collision, 277. Personal judgment, 277. Decree against principal and sureties, 277. 1044 INDEX. ADMIRALTY. Final decree Continued. Act of February 13, 1893, 277. Summary judgment and execution. When judgment entered, 278. Against stipulators, 278. No necessity for an action, 278. Nature of execution, 278. Sale of property. Duty of marshal, 278. Marshal's bonds, 278. Distribution of proceeds, 278. Surplus money, 278. Appeals. When allowed, 279. How taken, 279. Notice of appeal, 279. Time to perfect, 279. Proper appellants, 279. What brought up for review, 279. Appeal bonds, 279. Bond to stay execution, 279. Exceptions to the bond, 281. Petition of appeal, 280. Assignment of errors, 280. Particularly required, 280. The citation, 280. Filing papers, 281. The apostles, 281. Certification and return, 281. Notice and appearance, 281. New testimony, 281. Briefs, 282. Hearing, 282. Conflicting evidence, 282. No allowance of interest, 282. Decision. Mandate, 282. Final decree, 283. Appeal to the supreme court, 283. Prohibition, mandamus and certiorari, 283. Copies of record, 283. Evidence. Rules prescribed by supreme court, 283. Examination of witnesses in different courts, 283. General law of each state, 284. Variance between pleading and proof, 284. Admission in answer, 284. Depositions de bene esse. Use in admiralty, 284. Place of examination, 284. Notice of examination, 284. Motion to suppress, 284. Opposing side unrepresented, 284. Reducing deposition to writing, 285. Return of deposition, 285. Commission to take testimony, 285. Interrogatories, 285. Return of interrogatories. Duty of clerk, 285. Letters rogatory, 285. Depositions in perpetuam ret memoriam, 286. Petitions and Motions. Examples of, 286. Applications for relief. Notice, 286. Court will hear evidence, 286. Bringing motions before court by, 286. Question of jurisdiction, 287. Discretion of court, 287. Accompanying notice with affidavit, 287. Informality of motions, 287. i45 INDEX. ADMIRALTY. Petitions and Motions Continued. Motion to dismiss libel, 287. Joinder of issue, 287. Giving of stipulation, 287. Limitation of actions. No statute of limitations, 287. Adopting state statutes, 287. Laches-stale claims, 287. Discretion of court, 288. Intervention. Right to intervene, 288. How accomplished, 288. Requisites of petition, 288. Stipulation for costs, 288. Court may impose terms, 288. Insurer, 288. Possessory or petitory suit. State statute, 288. Lienor. Suit for forfeiture, 288. Mortgagee, 288. In suit for wages, 288. In salvage cases, 288. Bond given for original claim, 288. Where bond given for full value, 288. Consolidation of suits. Controversy involving same facts, 289. Various libels for same cause, 289. Husband and wife's suit for same cause, 289. When consolidation granted, 289. State practice, when followed, 289. Personal injuries. Nature of suit in admiralty, 289. Locus of tort generally, 289. Contributory negligence as bar, 289. Death claims, 289. The libellant, 290. Adopting state law, 290. Actions in rent and in personam, 290. Death of party. Making representatives parties by petition, 290. Personal representatives coming in, 290. Stipulations required of parties coming in, 290. Costs. A matter of discretion, 290. When allowed, 290. On appeals, 291. Docket fee, 291. Amount regulated by statute, 291. Clerk's fees, 292. Marshal's fees, 292. Commissioner's and witnesses' fees, 292. Stenographer's fees, 293. Printing and other expenses, 293. Taxation by clerk, review by judge, 292. Recovery of less than $300, 293. Several libels filed, 293. Dismissal for lack of jurisdiction, 293. Bill a part of decree, 293. Limitation of liability. Statute limiting owner's liability to interest in ves- sel, 294. Application and construction of statute, 294. Value of owner's interest, 294. Validity of statute. Exemptions, 294. Setting up provisions of statute, 294. Defendant's answer, 294. Application of statute to British corporation, 295. Proceedings in limitations of liability, 295, Rules of southern and eastern districts of New York, 295. Petition or libel in proceedings to limit liability, 296. 1046 INDEX. ADMIRALTY. . Limitation of Liability Continued. Stipulations in libel in proceedings to limit liability, 297. Turning over vessel ; interest, 297. Proceedings under the libel to limit liability, 297. Where appraisal is asked, 297. Staying proceedings, 298. Proof of claims, 298. Proof of claims and return of monition, 298. Court's monition to marshal, 298. Copy of injunction order, 298. Practice before commissioner, 298. Decree, 298. Reference back to commissioner, 299. Costs, 299. Costs paid out of funds, 299. Prizes. The proceeding generally, 299. Jurisdiction of district courts, 300. Captor's first duty, 300. Prize commissions, 300. Taking possession of ship's documents, 300. Duty of master, 300. Examinations in preparatorio, 301. Return of answers, 301. Effect of captor's neglect, 301. Filing the libel, 301. Nature of the libel, 301. Proceedings on return of process. 302. No answer to libel required, 302. Decree by default, 302. Proceeding where claim is interposed, 302. Further proofs, 302. Distribution of proceeds, 303. Costs and expenses, 303. Security for costs, 303. Restitution on rightful seizure, 303. Unjustifiable capture, 303. Recovery and award of damages, 303. Damages to owner where seizure unlawful, 303. Appeals in prize causes, 304. Military salvage on recaptures, 304. ADULTERY. Essential allegations in indictment, 305. Allegations conform to statute, 305. Using words "commit adultery," 305. Using word "adultery," 306. Open and notorious, allegation of, 306. Surplusage in indictment, 306. Allegation of party commencing prosecution, 306. Allegations of time, 306. Showing that parties lived together, 306. Name of co-criminal, 306. Allegations of knowledge, 307. Allegations of marriage, 307. Alleging that parties were not husband and wife, 307. Manner of making averment, 307. Alleging name of defendant's wife, 307. Alleging name of defendant's husband, 307. Joinder of counts, 307. Joinder of defendants, 308. Indicting parties separately, 308. Instructions. Habitual carnal intercourse, 308. Meaning of common words, 308. 1047 INDEX. AFFIDAVITS. See AFFIDAVITS OF MERITS. Use of affidavits in proceedings to obtain alimony. See ALIMONY. Affidavits in attachment proceedings. See AMENDMENTS IN ATTACH- MENT PROCEEDINGS. Affidavits to verify pleas in abatement. See ABATEMENT IN PLEADING. Affidavit of reality in agreed cases. See AGREED CASE. Affidavits in suits on probated accounts, 93. Generally. Definition, 309. Compared with deposition, 309. Compared with oath, 310. Nature, 310. As a pleading, 310. As a complaint, 310. Formal requisites, 311. Sufficiency. True test, 310. Language of statute, 310. Form and substance, 310. Perjury assignable though formally defective, 310. Title. How entitled, 311. Contents, 311. Court and cause, 311. Incorrectly entitled. Misjoinder, 311. Position of parties reversed, 311. Abbreviation of title, 311. Title in the body, 311. Court on appeal, 311. Attachment, 312. Mandamus and bail, 312. When not to be entitled. Suit already begun, 312. Mistake after decree, 312. Title altered, 312. Entitled two ways, 312. Reference to other papers, 312. Criminal information, 312. Replevin, 313. Title not surplusage, 313. Venue. Stating the county, 313. Prima facie evidence of county, 313. City and county, 313. Form of venue, 313. Letters " ss", 313. Effect of absence of venue, 313, 314. Purpose of venue. Jurisdiction of officer, 314. Jurisdiction presumed, 314. Officer of local jurisdiction, 314. Officer beyond jurisdiction, 314. Evidence aliunde of venue, 315. Signature. Necessity for affiant's signature, 315. Statute requiring, 315. Not signed, but name appearing, 315. Perjury assignable without affiant's signature, 315. Where signed, 315. Prima facie sufficiency, 315. By partnership, 316. By agent, 316. Persons incapable of signing, 316. Objection too late, 316. Jurat. What is, 316. Certificate of authenticity, 316. Form, 316. Particularity not required, 316. 1048 INDEX. AFFIDAVITS. Jurat Continued. " Before me," 316. Sworn to in open court, 316. Jurat not immediately annexed, 316. Perjury, 316. Venue of jurat, 316. No part of-affidavit proper, 316. Omission of name from jurat, 317. Service of copy, 317. Surplusage, 317. Sworn or affirmed, 317. Name of affiant, 317. Equivalent words, 317. " Then personally appeared," 317. Jurat on the back, 320. Authentication. Necessity for, 317. Official title of officer, 318. In judge's hand-writing, 318. Initials, 318. Time of signing, 318. Neither signed nor certified, 318. Blank form, 318. Negligence of officer in attesting, 318. Proving extrinsically, 318. Deputy officer, 319. Abbreviation of title, 319. Expiration of officer's commission, 319. Officer signing in wrong capacity, 319. Sufficiency of title. Clerk, 319. Insufficient title, 319. Judicial notice of officer's title, 319. Requirement of seal, 320. Date. Not essential, 320. Assigning perjury on affidavit not dated, 320. Showing mistake, 320. Substance. When affidavits are held good, 320. Statements should be positive, 321. Clerical errors, 321. Interlineations and erasures, 321. Scandalous matter, 321. Recitals, 321. Drawn up by counsel, 321. Language of statute, 321. Attachment, 321. Conclusions of fact, 322. Opinions and conclusions of law, 322. Inconsistent grounds for remedy, 322. Statements in the alternative, 322. Statements on information and belief, 322. Inferences, 322. Parties. Name of affiant, 323. Name of plaintiff, 323. Christian names, 323. Partnership, 323. Language. Immaterial what language, 323. Translation of foreign language, 323. Oath. Form, 324. No particular ceremony, 324. Recital by officer, 324. Insufficient oaths, 324. Circumstances must show that there was an oath or affirmation, 324. Who may make. Competency of affiants, 325. 1049 INDEX. AFFIDAVITS. Who may make Continued. Interested parties, 325. Parties to cause, 325. Jurors, 325. Printer, 325. Guardians, 325. Young children, 325. Lunatics, 325. Felons, 325. Witnesses, 325. Atheists, 325. Wife, 325. Negroes, 325 Partnership, 326. Corporations, 326. Legal representatives, 326. Attorneys for parties, 326. Attorney's clerk, 327. Affidavits of two attorneys, 327. Attorneys in absence of plaintiff, 327. Attorney's knowledge of facts, 327. Counsel for party, 327. Third persons, 328. Agents, 327. Who may take. Within the state, 328. General authority, 328. Officer authorized to administer oaths, 328. Under acts of Congress, 328. Notaries public, 329. Justices of the peace, 329. Clerks, 329. Judges, 329. Deputies, 330. Mayor, 330. Recorder of city, 330. Register of deeds, 330. Assistant justice of ward court, 330. Coroner, 330. Master in chancery, 330. State senator, 330. Commissioners, 330. Attorneys, 330. Attorney and justice, 331. Attorney and notary, 331. Attorney's clerk, 331. Attorneys for partner, 331. Foreign affidavits, 331. Statutes prescribing rules, 332. Lord Mayor, 332. Consuls, 332. Commissioners to take affidavits outside of state, 332. Counsel, 332. Solicitors, 332. Use of affidavits. Initiating legal proceedings, 333. Supporting or opposing motions, 333. Proving service, 333. Furthering stages of case, 333. To supplement record, 334. Showing preliminary proof, 334. Made in another suit, 334. Before a justice, 334. Affidavit by club, 334. 1050 INDEX, AFFIDAVITS. Use of affidavits Continued. Counter-affidavits, 334. Extra-judicial affidavit, 334. Argument, 334. As pleadings, 334. Explaining circumstances, 335. As evidence, 334. Admissions against affiant, 335. Weight as evidence, 335. When ex parte, 335. As part of the record, 336. Filing the affidavit, 336. Stale affidavits, 336. Amendments. Formal defects, 336. Substantial defects, 336. Absence of jurat, 337. Foreign affidavit, 337. Official title, 337. Signature of officer, 337. Statutes providing for, 337. Failure to amend after leave, 337. Filing nunc pro tune, 337. Reswearing, 337. Jurat defective, 337. AFFIDAVITS OF MERITS OR DEFENCE. Generally. Definition, 338. Requirement of, 339. Uniformity of practice, 339. Constitutionality of rules and statutes requiring, 339. When required to prevent inquests or judgments bv default, 341. To prevent inquests. In common-law actions, 341. Actions in equity, 341. Defence a set-off, 341. Application of rule to plaintiffs, 341. Calling case in its order on the calendar, 341. Verified answer equivalent, 342. On overruling demurrer. Where demurrer is withdrawn or confessed, 342. Where demurrer is sustained and plaintiff wishes to amend, 342., Sufficiency of affidavit, 342. Mississippi rule, 342. In actions at common law. Massachusetts rule, 342. To prevent judgment by default. 342. In cases of money demands, 342. In actions on money demands. Michigan rule, 343. To prevent judgment by default, 343. Form of affidavit, 343. Actions on contracts. Where plaintiff files affidavit of amount due, 343. Necessity for plaintiff's affidavit of amount due, 344. Motions, demurrers or pleas in abatement, 345. Judgment for plaintiff for default, 345. Affidavit filed with plea, 345. Plaintiff pleading over, 345. Conceding part of plaintiff's claim, 346. Sufficiency of affidavit following statute, 346. Affidavit must show to what part of demand it applies, 346. Appeals from justice courts, 346. Appeal bonds, 346. Distress warrants, 346. Actions on judgments. Rule in District of Columbia, 347. Actions of assumpsit. Pennsylvania rule, 347. Action accompanied by statement of plaintiff's demand, 347. To what actions applicable, 348. 1051 INDEX. AFFIDAVITS OF MERITS OR DEFENSE, Actions of assumpsit Continued. Actions against corporations, 348. Proceedings against public officers, 348. In actions of foreign attachment, 348. Actions against married woman, 348. Appeals, 348. Actions against executors, administrators or heirs, 340. Actions against infants, 349. Actions on judgments, 349. Actions on implied contracts, 349. Actions against lunatics, 349. Actions for torts, 349. Plaintiff's statement, necessity for, 349. Sufficiency of, 350. Omission of affidavit; judgment by default, 350. Plaintiff's statement; waiver of right to, 350. Waiver of defects, 350. Admission of part of claim, 351. Sufficiency of affidavit, how tested, 351. Necessity for affidavit, how question raised, 351. Sufficiency of affidavit. Inferences, 351. Admissions binding, 351. To open judgments or inquests. Affidavit universally required, 352. Rule in equity, 353. Service of answer, 353. Answer not a substitute, 353. Sufficiency of affidavit at law, 353. Necessity for stating facts, 353. Verified answer taking place of affidavit, 354. Serving proposed answer, 354. When default opened, 355. Technical defense, 355. Irregular default, 355. To extend time to answer or demur. Affidavit sometimes required, 355. To change venue. When affidavit required, 355, 356. On motions generally. Dilatory motions, 356. Motion to stay proceedings on bail bond, 356. To set aside proceedings for irregularity, 356. To obtain stay of proceedings, 356. To obtain leave to answer, 356. To resist motion, to strike out plea as false, 356. To obtain a continuance, 356. Where complaint has not been filed or served, 357. At what time made. After filing or serving declaration or complaint, 357. On or before joining issue, 357. Before trial, 357. Prematurely made, 357. One affidavit usually sufficient, 357. More than one affidavit, 357. Filing second, abandonment of first, 358, By whom made. Defendant, 358. Marriage pending action, 358. Corporations defendant, 358. Real party in interest, 358. Guarantor, 358. Stranger, 358. Several defendants, 359. Maker and endorsers, 359. Submission of controversy, 359 Sheriff and sureties, 359. Agents, 359. 1052 INDEX. AFFIDAVITS OF MERITS OR DEFENSE. By whom made Continued. Attorney or attorney's clerk, 359. Excuse for defendant's failure to make, 360. Excuse for substituted affidavit, 360. Contents. Ordinary form, 360. Every part of usual form material, 360. Proper form, 361. Alleging " statement " of case, 361. Alleging statement of. " the case," 361. " This " or " his " case, 361. " Case " " fully and fairly " stated, 361. Facts to his knowledge, 361. ' His defense," 361. Facts of the case, 361. No statement of facts, 361. " His case in this cause," 361. Defendant's defense, 361. Statement to defendant's counsel, 362. " Full and substantial " defense, 362. " Good and lawful " defense, 362. "Good cause of defense," 362. Good and substantial defense, 362. "Good and perfect" defense, 363. " Good and valid " defense, 363. Defense upon the merits, 363. Good and meritorious defense, 363. Defense to plaintiff's claim, 363. Defense in the action, 364. Advice of counsel, 364. Defendant advised by his counsel, 364. Attorney or counsel, 364. Advice "after" statement, 364. Name of counsel, 365. When not necessary to allege, 365. Defendant's belief, 365. Belief, upon what founded, 365. " Believed," 365. Belief in truth of advice, 365. " As he is advised and believes," 365 Where facts are stated, 366. Illinois rule, 367. Formal defects, 367. Substantial compliances, 367. % Facts constituting defense, 367. Facts not provable, 367. Partial defense, 368. Court compelling facts to be stated, 368. Testing sufficiency of affidavit, 368. Pennsylvania rule, 368. Form. Statement of facts, 368. Every fact necessary, 368. Conclusions of law, 369. Clear statement, 369. Action on note, 360. Information and belief, 369. Written instruments, 370. Partial defense ; supplemental affidavit, 370. Referring to paper without annexing copy, 370. Sufficiency for co-defendants, 371. Affidavit by attorney, agent or clerk, 371. 1053 INDEX. AFFIDAVITS OF MERITS OR DEFENSE. Contents Continued. Made by managing clerk, 372. To obtain change of venue, 373. Title, jurat, etc., 374. Improper title, 374. Caption, 374. Amendments, 375. Controverting the affidavit, 375. Service of and filing affidavits, 375. Counter-affidavits, 376. Contradicting facts, 376. AFFIRMATION. Definition, 377. History. English statute law, 377. American statute law, 378. Appeal to supreme being, 377. Atheists, 378. Children, 379. Privilege of affirming, 379. Strict construction of statutes, 379. Effect, 380. Form, 380. Form varying from statute, 380. Presumption as to regulations of statute being complied with, 380. Rule in criminal cases, 380. Witness not objecting to oath, 380. Irregularity. Indictment for perjury, 381. Pretending to be a quaker, 381. AFFRAY. Definition, 382. The indictment, 382. Form of indictment, 382. Alleging an affray, 372. Allegation of place, 383. Trial. Both must be convicted, 383. Including assault and battery, 383. The verdict, 383. AGREED CASE. Definition, 385. Nature of agreed case. As a substitute for action, 385. As commencement of a suit, 385. Purpose to save trial, 385. No dispute about facts, 385. Signature, 385. Contents. Facts pertinent to particular issue, 385. Facts regarded as true, 385. All material facts, 385. Facts and not evidence, 386. What not stated regarded as not existing, 386. Mode of stating. Subject-matter of controversy, 386. Like a special verdict, 386. Equivalent to findings by court or special verdict of jury 386, jury, 386. Must be no ambiguity, 386. Judgment. Judgment must be provided for, 387. Judgment upon an agreed case as a bar, 387. Recovery of statutory penalty, 387. Judgment for nominal sum, 387. What is not an agreed case. Agreements as to evidence, 387. INDEX. AGREED CASE. What is not an agreed case Continued. Competency of evidence, 388. Contest in disputed elections, 388. Nature of controversy, 388. Question of right to serve process, 388. Pleas in abatement, 388. Mandamus and prohibition, 388. Subject of civil action, 388. Enforcement of liens, 388. Injunctions, 388.. Affidavit of reality. Affidavit of reality jurisdictional, 388. By whom made, 389. By same attorney for both parties, 389. Statement as to affidavit in record, 389. The stipulation. Extent of control by parties, 389. Parties cannot give jurisdiction over others, 389. Action by creditor of corporation, 389. Specified points of law, 390. Right to except reserved, 390. What necessary to make agreed case part of judgment-roll, 390. Judgment of respondent ouster, 390. When state concluded, 390. Effect as an estoppel, 390. Officer's return, 390. Must be certain in terms, 391. Effect as a waiver, 391. Legal or equitable relief, 391. In ejectment, 391. Technical objections as to form of action, 392. Reserving objections by stipulation, 392. Controverting facts in argument, 393. Abandonment or rescission, 393. Withdrawal by leave of court, 393. Function Of court. Only questions of law, 393. No power to draw inference of fact, 393. Speculative or fictitious questions, 394. Necessary inferences, 394. Stipulation that court may draw inferences of fact, 394. Amendment. How to proceed to amend, 195. The application to amend, 395. Power to amend, 395. Instances of allowing, 395. Submission must be in good faith, 395. Discharge. Some misapprehension must be shown, 396. When each party has claim against third party, 396. When injunction the only relief, 396. When facts insufficiently stated, 396. Power to discharge; when exercised, 396. Miscellaneous instances of discharge, 397. Court will not act as a jury, 396. Case must contain all essential facts, 397. Receiver's powers as to agreed case, 397. Deducing proper legal conclusions, 397. Cannot go outside of case, 397. When case will be declared void, 397. Nature of relief to be granted, 398. Not necessary to make findings, 398. Parties. Persons having interest affected, 398. Effect of defect of parties, 398. Dismissal for want of necessary parties, 398. Attorney-general, 398. - INDEX. AGREED CASE. Parties Continued. Executor and administrator, 399. Infants, 399. By whom case must be signed, 399. Costs. Agreed case as an action, 399. Trial of an issue of law, 399. Control by stipulation, 399. Costs taxable, 399. Extra allowance, 221, 399, 400. Second trial, 400. Where case is dismissed, 400. Miscellaneous points of practice. In Maine and New Hampshire, 400. New York practice, 400. In federal courts, 401. When agreed case is lost, 400. Pleadings. Relation to agreed case, 401. Issue as made up, 401. Amendment, 401. Effect of filing an agreed case subsequent to pleadings, 402. Manner of alleging facts, 402. Plea in abatement, 402. Form of action, 402. Questions of sufficiency, 402. Evidence upon subsequent trial. Use in evidence upon subsequent trial, 402. Appeals. Finality of judgment, 403. Whether an appeal or writ of error lies, 403. Necessity for bill of exceptions, 403. Relation of appellate to inferior court, 404. Effect of absence of bill of exceptions, 404. Motion for new trial, 404. New trial upon reversal, 405. Right to appeal reserved by stipulation, 405. Point not raised in court below, 405. Action originating before magistrates, 405. No appeal until after judgment, 405. Agreed case as part of record, 405. Statutory provisions in the various states, 406. ALIENS. Capacity to sue. Pleas in abatement, n. ALIMONY. As an independent right. Alimony without divorce, 408. Power given by statute, 409. After legislative divorce, 409. Jurisdiction of chancery courts, 409. Practice and procedure similar to divorce suits, 409. Temporary alimony, 410. Relief granted, 410. The decree. Separation, 410. Decree for specific property, 410. Decree upon conditions, 410. Enforcing decree, 411. Avoidance of decree, 411. Temporary decree, 411. Decree in another state, 411. Duration of payment, 411. Revision or amendment of decree, 411. Abatement of suit. Death of party, 411. Supplicavit for security of peace, 412. Jurisdiction. Divorce courts, 412. Domicil necessary to jurisdiction, 412. Appearance of defendant. Constructive service, 413. 1056 INDEX. ALIMONY. Jurisdiction Continued, by attorney, 413. Due service of process, 413. Alimony decree in per sonant, 413. Where land within jurisdiction of court, 413. Defendant domiciled in state, 413. Service on solicitor, 413. Temporary alimony, 414. Fraud on jurisdiction, 414. After dissolution of marriage. Application usually denied, 414. Dissolution by death, 414. Jurisdiction reserved by decree or by statute, 414. Final judgments, settling rights of parties, 414. Dismissal of application without prejudice, 415. Where decree was ex parte, 415. Divorce a vinculo, 415. Divorce a mensa et thoro, 415. Fraud in procuring divorce, 416. Enforcing decree in another state, 416. Procedure generally, 417. Ordinary method of court followed, 417. Pleadings. Prayer for alimony, 417. Methods of praying alimony, 418. Notice of application, 418. Temporary alimony. When asked and granted, 419. Permanent alimony. When to be prayed for, 420. Divorce and alimony separately considered, 420. What to be shown to warrant alimony pendente lite, 421. Hearing of husband, 422. Parties, 423. How wife sues, 423. Temporary alimony. When asked and granted, 418. Application for, 418, 419. What to be shown to warrant alimony pendente lite, 421. Evidence. Wife's affidavit, 424. Affidavit of other parties, 424. Husband's answer under oath, 424. Affidavits and depositions, 424. Wife's prima facie case, 425. Hearing of husband, 425. Oral testimony, 425. Accessions of property, 425. General admissions, 425. Divorce in another state, 425. Burden of proof, 425. Reference to determine facts, 426. No hearsay evidence, 426. Authority to sue, 426. Modification of decree, 426. Decision on affidavits, 426. Unaided admissions, 426. Decree. Allowance in instalments, 427. Sum in gross, 427. Ante-nuptial agreement, 427. Specific property, 427. Form, 427. Gross sum in lieu of dower, 428. Sum in gross payable in instalments, 428. Discretion of court, 428. Order for temporary alimony, 428. Terms. Reconciliation of parties, 429, I Encvc. PI. & Pr. 67. 1057 INDEX. ALIMONY. Decree Continued. Award during joint lives, 429. Condition that wife remains single, 429. When allowance commences, 429. Arrears of alimony, 430. Temporary alimony increased'or diminished, 430. Permanent alimony increased or diminished, 430. Modification of decree, 430. Change of circumstances of parties, 431. Newly discovered evidence, 431. Application for modification, 432. Husband unable to pay, 432. Allowance inadequate, 432. Enforcing decree. By what tribunal, 432. Enforcing decree in other states, 433. Enforcing decree in United States courts, 434. Methods employed to enforce decree, 434, 435, 436. Assumpsit to enforce decree, 434. Scire facias to enforce decree, 434. Attachment to enforce decree, 435. Fieri facias to enforce decree, 435. Execution to enforce decree, 435. Taking away privileges to enforce decree, 436. Dismissing bill to enforce decree, 436. Striking out answer to enforce decree, 436. Sequestration to enforce decree, 436. Attachment for contempt to enforce decree, 437. Imprisonment for debt. 439. Attachment for contempt. Enforcing decree by, 437. Criminal nature of proceeding, 437. When attachment granted, 437. Refusal to pay must be wilful, 438. Not granted where there is no contempt, 438. Oppoitunity to pay, 438. Burden of proof, 438. Application for attachment, 438. Notice of application, 438. When remedy is used, 439. Wife having ample security, 439. Issued against court of chancery, 439. Imprisonment for debt, 439. How application made, 440. Ne exeat to secure alimany, 440. Writ granted in aid of decree, 440. Writ asked when bill is filed, 441. Writ granted even before decree, 441. Petition and affidavits, 441. Allegation that husband was about to depart, 441. Discharge of writ on husband filing security, 441. Injunction to sec ira alimony. 442. Power to grant, 442. Restraining disposition of property, 442. Petition and affidavit, 442. Before decree and award, 442. Necessary facts to be shown, 442. Denial of husband will not dissolve, 442. Operation of the injunction, 443. Against third parties, 443. J-ijna fide purchasers, 443. Terms of injunction, 443. Receiver of husband's property, 44;- 1058 * INDEX. ALIMONY Continued. Dec ce as lien on land, 443. Doctrine of Us pendens, 443. Specially charged ou particular property, 444. Divorce suit itself not lien, 444. Order to convey property to trustees, 444. To what attaches^, 444. Requiring security, 445. Insuring payment of alimony, 445. After entering judgment, 445 Bond not assignable, 445. How enforced, 445. Suit on bond without leave of court, 445. Fraudulent conveyances to de'eat alimony, 445. Appeals. Right to appeal from refusal or granting of alimony, 446. Discretion as to amount, 446. Alimony pendente lite, 447. Alimony and counsel fees pending appeals, 448. Appeal without merits, 449. Laches of wife, 449. Grant of alimony by appellate court, 449. Collateral attack, 450. Order modifying decree, 450. Temporary alimony granted by appellate court, 450. Suit money, counsel fees and costs. Definitions, 450. Suit money. Use of terms, 450. Grantable without statutory aid, 451. Principles on which awarded, 451. Where wife fails, 452. Of what it consists, 452. Allowance for expenses. 452. Sum in gross, 452. Fees of witnesses, 452. Wife's need. Separate estate, 452. Object of granting, 452. Grant on final hearing, 452. Discretion of court, 453. Counsel fees. Right of wife to bind husband for legal assistance, 453. Award of sum to employ counsel, 453. Application for, 453. When awarded, 453. Taxed as costs, 453. . To whom paid, 453. Dismissal of divorce suit during vacation, 453. When allowance refused, 454. Proof to aid court, 454. Number of attorneys, 454. The amount, 454. Allowance on appeal, 455. Discretion of court, 455. Statutory aid, 455. To enable wife to resist motion to reduce alimony, 455. Costs. Costs against wife, 455. Cost to prevailing party, 455. Discretion of court, 456. Wife plainly in fault, 456. Bill improperly filed, 456. Where probable cause, 456. Intruder taxed with costs, 456. Where next friend insolvent, 456. Costs of husband not awarded against wife, 457. INDEX. ALIMONY. Costs Continued. Not awarded against wife's solicitor, 457. Collection by contempt proceedings, 457. ALLOCUTION. See Cross References, 458. ALTERNATIVE PLEADINGS. See Cross References, 458. AMBIGUITY IN PLEADINGS. See Cross References, 458. AMENDMENTS GENERALLY. Amendments in admiralty practice. See ADMIRALTY. Amendments of appeal bonds. See APPEAL BONDS. Amendments of affidavits. See AFFIDAVITS. Amendment of agreed case. See AGREED C\SE. Definition of amendments, 462. Pleas in abatement not amendable, 26, 519. Allowing pleas in abatement in place of pleas in bar, 5. AMENDMENTS AT COMMON LAW, UNDER CODES AND STATUTES. Power to amend. Inherent power, 508. Justices of the peace, 508. At any time before final judgment, 509. Distinction between penal and other actions, 509. Real actions, 509. Lex fori governs, 509. Statutes declaratory of common law, 509. Something to amend or amend by, 509. Effect of statutes of amendment, 510. Complaint failing to state any cause of action whatever, 510.. Faulty statement of facts constituting cause of action, 510, Relation between federal and state practice, 510. Federal courts following state practice, 511. Court without jurisdiction cannot allow amendment, 511. Amendment of jurisdictional averments, 511. Striking out a count, 512. In the federal courts, 512. When such amendments have been allowed, 513. By referees. Power wholly statutory, 513. Extent of power, 513. Code provisions, 513. Power to impose terms, 515. New cause of action, 514. May require application to court, 514. New defense, 514. In respect of parties, 514. To conform to proof, 515. Review of referee's ruling, 515. In furtherance of justice. Principle pervades all amendments, 51?. Oversights of counsel, 516. Giving one party technical advantage, 5*6- Application of principle, 516. Amendments favored, 516, 517. Reason of rule, 518. Liberal construction of statutes, 518. The defendant favored, 518. Municipal corporations, 518. Amendments barred by limitation, 518, 519. Further amendments, 519. Amendments in pleas of abatement, 510. Unconscionable defenses. Usury and limitation, 520. Defense of infancy, 522. Laches of applicant, 522. 1060 INDEX. AMENDMENTS AT COMMON LAW, UNDER CODES AND STATUTES. In furtherance of justice Continued. Immaterial, unnecessary and unavailing amendments, 523. Laches of applicant where the facts were known. 523. Amendment contradicting facts, 524. Amendment to which demurrer would be sustained, 524. Amendments discretionary. Review of discretion, 524. On what grounds, 524. Mistaken view as to power to allow amendment, 524. Under the code system, 525, 526, 527. Construction of statutes, 528, 529, 530. Absolute right to have amendment, 530, Want of power, 531. New cause of action, 531. Ground of decision. How ascertained, 532 Presumptions in favor of trial court, 532. Showing required in trial court, 532. Sufficiency of record, 532. Harmless error, 533. Objection and exception, 533. Circumstances rebutting prejudice, 533. Method of review, 534. In respect of parties. Misnomer, 535. Misnomer at common law, 535, Modern statutes, 536. Misnomer of plaintiffs, 536. Misnomer of defendants, 536. Misdescription of plaintiff. Changing nominal plaintiff, 537. Substituting beneficiaries, 538. Substituting holder of legal title, 538. Entirely new plaintiff, 538. Representative capacity of plaintiff, 539. Proceeding in name of neither natural or artificial person, 539, 540. Misdescription of defendant. Nominal change, 540. Adding plaintiffs. Statutory provisions, 541. Adding plaintiffs at common law, 541. Striking out defendants at common law, 541. Striking out plaintiffs, 543. Statutory provisions, 541. At common law, 543. Effect of making new defendant. 543. Striking out defendants. By statute, 545. Entering nol. pros., 544. Entire change of parties, 545. Introducing new cause of action or tefense. Rule under codes and statutes, 547, 548- Rule at common law, 547. Prevalence and extent of rule, 547. Statutes of the different states examined, 548-556. General tests, 556. Federal follows state practice, 557. What amendments are allowed. Amplified statements. 55 Correcting misdescriptions, 558. Making allegations more formal or precise, 560. In ejectment, 561. In action for death, 561. In actions for flowage of land, 561. Trespass quare clausttm, 561. Same allegations n different form, 562. In action for negligence, 563. In action for slander, 563. Summary statement of rule, 564. 1061 INDEX. AMENDMENTS AT COMMON LAW, UNDER CODES AND STATUTES. Introducing new cause of action or defense Continued. Liberal policy, 567. What amendments are not allowed, 567. Changing legal to equitable action and -vice versa, 568. Changing common-law action to statutory action, and vice versa, 569. Libel, slander and malicious prosecution, false imprisonment, etc., 570. Action for seduction changed into action for rape, 570. Other instances collected, 571, 572. Objection, how taken, 571. Waiver of objection, 573. Method of determining the question, 574. Review of decision of trial judge, 574. Changing form of action. General rule, 574. Discretion of court, 574. Sanction by statute, 575. Where forms of action are abolished, 575. Matters arising pendente lite. Amended and supplemental complaint, 576. Effect of answering, 577. Amended and supplemental answer, 577. Effect of improper amendment, 577. To obviate a variance or conform to proof. To obviate a variance, 577, 578. Time to answer amendment, 578. To conform to proof. Rules stated. Power, how derived, 578. Authority to allow, 578. Confined to original cause of action, 583. After reversal and remand, 584. Only in furtherance of justice, 584. Unconscionable demand, 585. Sufficiency of proof, 585. Where evidence was objected to, 585. Failure of proof, 586. Amendment of the ad damnum. Not a new cause of action, 586. Before trial. By increasing or reducing, 587. Filling a blank, 588. After plea in abatement, 588. On the trial, 588. To conform to proof, 588. After verdict or referee's report, 589. After relinquishing the verdict, 589. After merits fully litigated, 589. After judgment, 590. At what stage of the proceedings. Before trial. General rule, 590. After issue joined, 590. After change of venue, 590. After demurrer, 591. After plea in abatement, 591. After proceedings of the action have been abated, 591 After demurrer. Under Code provisions, 594. After demurrer. Amendment of demurrer, 595. Before announcing ready for trial, 597. On the eve of trial, 598. On the trial, 598. Making a new cause of action, 598. Formal errors, 598. To obviate a variance or to conform to proof, 598. Liberally allowed, 600. Laches of applicant, 601. Question first raised on the trial. 60^. In case of mistake, 601. 1062 INDEX. AMENDMENTS AT COMMON LAW, UNDER CODES AND STATUTES. At what stage of the proceedings Continued. Where plaintiff's claim would be barred, 601. After jury sworn, 602. Reswearing the jury, 602. At what stage of the trial, 602. Only in furtherance of justice, 602. After mistrial, 603, After motion for nonsuit, 603= During the argument, 603. After submission to jury, 603, After jury instructed, 603. After report of referee, 603. After verdict, 604. After judgment arrested, 605, Terms of amendment, 605. After judgment, 605. Power sparingly exercised, 605. Special circumstances, 606. Pending appeal or writ of error, 607, In order to conform pleadings to facts. 607. Giving opposite party opportunity to controvert new allegations, 607. In appellate courts, 607. Where the cause is tried upon the record, 607. Statute of jeofails, 608. By consent of parties, 608, Where the trial is de novo, 611. Amendments considered as made, 6ll. To conform to proof, 611. Neglect to apply for leave, 611. Complaint bad on demurrer, 611. Remand with directions to amend, 617. After remand, 617. Discretionary, 619. Where remand is general, 618. Res judicata, 620. Where the remand is limited, 620. Matters arising after mandate, 621. Effect of amendments. Retroactive effect, 621. Statute of limitations, 621. Where amendment does not introduce new cause of action. 621. Where amendment introduces new cause of action, 622- New cause of action. How question is raised, 623, Where new parties are introduced, 623. Effect upon injunction, 624. Without prejudice, 624. Original defects cured, 624. As a waiver of error in previous rulings, 624, Original pleadings superseded, 625. The original complaint, 625. Original complaint as evidence, 626. Amended answer, 626. Effect of striking out, 627. Right to plead de novo, 627. Substantial amendments, 627. When new answer required, 628. Election to stand upon original pleading, 628. Formal amendments, 629. Leave to amend. Amendments of course, 629. Statutory provisions. Absolute right, 629, Waiver of right, 631. 1063 INDEX. AMENDMENTS AT COMMON LAW, UNDER CODES AND STATUTES. Leave to amend Contirtued. Amendments by the plaintiff, 631. What amendments may be made, 631. Amendments by the defendant, 632. What pleadings may be amended, 633. Supplemental complaint, 633. Notice of lien, 633. Offer of judgment, 633. Summons, 633. Once only, 633. For the purpose of delay, 634. Remedy for unauthorized amendment, 634. When leave is necessary. Implied leave, 634. Pleading requiring verification, 635, Effect of filing without leave, 635. Waiver of irregularity, 636. Implied leave, 636. Presumption of leave, 636. Application for leave, 637. Suggestion by the court, 636. Suggestion discretionary, 636. Proposed amendment, 637. A general application, 637. Grounds shown by affidavit, 637. Amendment making new issue, 637. Presumption in favor of court, 637. No affidavit necessary, 638. Renewal of motion, 638. Prima facie case sufficient, 638. Notice of motion. When required, 639. Service of proposed amendment, 639. Prayer for general relief, 639. When not required, 640. Orders granting leave. General leave, 640. Limiting time, 640. Failure to file within time limited, 640. Method of making amendments. Actual amendment, 640. Implied amendment, 641. Entry of record, 641. Order operating as amendment, 641. By interlineation, 642. Discretionary, 642. Toleration of the practice, 642. Not a ground of demurrer, 643. By reference, 643. By a separate pleading, 643. Form of amended pleading. Venue, 643. Averments, 643. Signature, 644. Verification, 644. Service of amended pleadings. When necessary. How made, 64;;. Terms. Power to impose or dispense with, 646. Discretionary. Review for abuse, 647. Objections to rulings, 648. Effect of accepting terms, 648. Proper terms, 648. Customary to exact terms, 648. No precise rule, 649. Where prejudice or surprise, 650. Controlling considerations, 651. Bringing in new plaintiffs, 51. 1064 INDEX. AMENDMENTS AT COMMON LAW, UNDER CODES AND STATUTE! Terms Continued. Introducing new cause of action, 651. After nonsuit, 651. After verdict, 652. After reversal on appeal, 652. Without terms, 653. Government pays no costs, 654. Miscellaneous proceedings. Great latitude allowed, 654. Affidavits, 654. Petitions of various kinds, 655, Bills of particulars, 656. Copy of notice sued on, 656. Specification of claim, 656. Statement of account in probate court, 656. Notice of special motion, 656. Special denials, 656. Complaints in forms prescribed by statute, 656. Referee's report, 656. Motion for new trial, 656, Report of evidence, 656. Assignment of errors, 656. Caveat, 656. Scire facias, 656. In foreign attachments, 656. Notices of pendency and returns to attachment, 656. Offers of judgment, 656. Statement on confession of judgment, 657. Rule upon which money has been brought into court, 657. Motion and notice in proceedings against sheriff, 657. Bill of costs. Affidavit accompanying it, 657. Replevin bonds, 657. Bond for ne exeat, 657. Interrogatories filed on return of attachment against sheriff, 657. Pleadings in suit to recover penalties, 657. Summary proceedings, 657. Statement in action for highway injuries, 657. Pleadings in tax cases, 657. Notice served with summons. Judgment for default, 657. Citation of creditors, 657. Notice of appearance, 657. Notice of motion, 657. Grounds for election contests, 657. Answer in election contest, 657. Statement in agreed case, 658. Local assessment proceedings, 658. Exceptions to auditors' reports, 658. Recognizance for costs, 658. Petition for certiorari, 658. AMENDMENTS IN ATTACHMENT PROCEEDINGS. In general, 675. The declaration or complaint, 676. For the same cause of action, 676. Defects of substance, 677. New cause of action. 677. Adding new count, 677. Demurrable complaint, 677. Change of parties, 678. Effect of improper amendment, 678. Tort to contract and vice versa, 678. Title acquired pending suit, 678. Misnomer of the parties, 679. INDEX. AMENDMENTS IN ATTACHMENT PROCEEDINGS. The declaration or complaint Continued. Increasing ad dumnurn, 679. Defective verification, 680. Affidavits. In the absence of express statute, 680. By express statute, 682. Under general statute of amendment, 681. Bonds. Material defects, 683. Form and substance, 684. Undertaking not signed by plaintiff, 685. The writ. In general, 685. Misnomer, 686. Caption, 686. Direction and return time or place, 686. Ad damnum, 687. Signature, seal, date, 687. Teste, 687. AMENDMENTS IN CRIMINAL PROCEEDINGS. Indictments. At common law, 688. Substance, 688. What constitutes substance, 690. Lost indictments, 688. Recommitting for amendment, 689. In matters of form, 689. The caption, 689. Value of goods, 691. Names, 691. Date of offense, 691. Venue of offense, 691. What constitutes form, 692. Defective introduction. 692. Informal conclusions, 692. Name of person defrauded, 692. Signature of district-attorney, 692. By statute, 692. Constitutionality of acts, 692. Changing the crime, 692. Names, dates, descriptions, etc,, 693. Amendment in defendant's absence, 693. Allegation of former conviction, 693. Misnomer of accused, 693. Variance in particulars, 693. Of informations. Distinguished from indictments, 696. Amendments discretionary, 697. Filing new information, 698. Complaints, warrants, etc. Complaint of grand jury, 699. Certificate of magistrate of superior court, 700. Complaint before a justice, 700. Justice's warrant, 700. Amendment of plea in abatement, 701. AMENDMENTS IN EQUITY. Generally. Cardinal rule. Discretion of court, 463. Legislative power to change practice, 464. Election contest, 464. Federal not affected by state practice, 464. In furtherance of justice, 464. The practice liberal, 464. Verified pleadings, 464. Special indulgence; to whom granted, 464. Amendment without proper showing, 464. Curing a variance, 465. Fruitless amendment, 465. ir66 INDEX. AMENDMENTS IN EQUITY. Generally Continued. Review of exercise of discretion by appellate court, 464. Making a new case, 465. Injunction bond, 466. No objection made at the time, 466. Verifying answer, 465. Bills. Parties. Change of parties, 466. Parties to creditor's bill, 466. Transposing, ,)66. Want of, not fatal, 466. Striking out, 467. At what stage allowed, 467. Laches of applicant, 467. Where objection was taken by answer, 467. Where plaintiff has no interest, 468. Effect of amendment as to, 468. In respect of matter, 468. Prayer for relief, 468. Omission or mistake, 469. Creditor's bill, 469. Avoiding special defense, 469. Freely allowed, 470. Matters of form, 470. Waiving oath to amendment, 470. Inserting facts set up by answer, 470. Facts known to defendant, 471. Matter occurring pending suit, 471. New law pending suit, 471. Executor taking out letters in foreign state, 471. Jurisdictional averments, 472. Making a new case, 472. What constitutes making a new case, 472-473. Tests as to whether new case is made, 474. Making a new case. Seeking different relief, 475. Making a new case. Objection how taken, 476. Inconsistent or repugnant amendments, 476. Inconsistent amendments. Limitation of the rule, 477. Inconsistent amendments. Striking out contradictory matter, 477. Sworn bills, 478. At what stage of proceedings, 478. Before issue, 478. After demurrer, 479. The old rule relaxed, 480. Leave given on argument, 480. Application for leave, 480. Demurrer for want of parties, 480. Demurrer for want of equity, 481. Before final judgment on demurrer, 481. Review on appeal, 481. Remand with leave to amend, 481. After plea, 481. After replication. By adding parties, 482. In substance, 482. Excuse must be shown, 482. Federal equity rules, 482. After witnesses examined, 482. Exception to general rule, 483. Amending prayer, 483. After reference or master's report, 483. Amendments raising new issues, 4^3. At the hearing. In respect of parties, 484. 1067 INDEX. AMENDMENTS IN EQUITY. Bills Continued. Amending prayer, 484. Perfecting allegations, 484. To conform to proof, 485. To conform to theory of trial, 485. To cure a variance, 486. To conform to contract proved, 486. To meet allegations in answer, 486. Where evidence is defective, 486. Laches, 486. In Alabama, 486. Facts known to defendant and not disclosed, 486 After testimony taken, 487. Making a new case, 487. After decree, 487. In appellate court, 488. Federal practice, 488. Adding parties, 488. Remanding cause, 488. Remand with leave to amend, 488. Making new case, 489. Neglect to apply in lower court, 489. After remand from appellate court, 489. Amendments discretionary, 490. Effect of amendment. Right to plead anew, 490. Right of defendant to put in new answer, 490. Pleading, answering or demurring to amended bill, 490. Retroactive effect, 491. Original and amendment one record, 491 Statute of limitation suspended, 492. Effect on injunction, 492. Effect on third parties, 492. Discharging contempt proceedings, 492. Designed to promote justice, 493. Adding new parties, 493. Without prejudice to injunction, 493. Waiver of default, 493. Obviating multifariousness, 494. New process upon amendments, 494. Demurrers. Less extended demurrer, 494. Narrowing demurrer, 494. Correcting clerical error. 494. Pleas. Accident or mistake, 495. Plea of account stated, 495. Plea of release, 495. Additional facts, 495. Amended verification, 495. Ground of defense alleged, 495. Limiting time to make amendments, 495. Leave to amend at or after argument, 495. Replications, 495. Answers. In general, 495. Matters of form. Verbal inaccuracies, 496. Material facts, 496. Letting in facts and defenses depending upon parol evidence, 497. Document omitted by mistake, 497. Discretion of court, 497. Matters as to which court shall be satisfied, 497. Ambiguous answer, 497. Mistake of fact, 498. Previous knowledge, 498. 1068 INDEX. AMENDMENTS IN EQUITY. Answers Continued. Negligence of party, 498. Facts accruing subsequent to answer, 499. Making a new defense, 499. Unconscionable defenses, 499, Statutory defenses put upon same grounds as other defenses, 500. At and after hearing, 500. During progress of trial, 501. After case has been heard and court has expressed opinion, 501. When court is about to sign decree, 501. On rehearing of a decree, 501. Master's report. Correction of omission, 501. Error of expression, 501. In furtherance of justice, 501. Process. Date of subpoena, 501. Subpoena returnable on Sunday, 502. Leave to amend. When necessary, 502. After pleading filed, 502. Application for leave, 503., The affidavit, 503. Oath to proposed amendment, 503. Application to amend pleas, 503. How made. Bills, 504. Amendments should be designated, 504. By interlineations, 504. By amended bill, 504. Form of amended bill, 505. Verification, 505. Signature of counsel, 505. Answers, 505. Supplemental answers, 505. Taking answer off file, 506. Matters of form, 506. Unsworn answer, 506. Correcting mistake as to matter of fact, 505. Terms. Discretion of court to prescribe, 506. In furtherance of justice, 506. After master's report, 506. Special terms, 506. Payment of costs, 507. After demurrer, 507. Imposing terms on allowance of amendments in equity, 507, 508 Amendment of answer, 508. AMENDMENTS OF PROCESS. Writ or summons. In general, 658. At common law, 658. Under modern statutes, 659. Something to amend by, 658. Federal, how far controlled by state practice, 660. Title, 661. Caption, 662. The direction, 662. Indorsement, 662. Misnomer The common law, 663. By statute, 663. Inserting Christian names, 664. Retroactive effect, 665. Want of appearance, 665. In respect of parties, 665. Misdescription of party, 665. Striking out parties, 666. 1069 INDEX. AMENDMENTS OF PROCESS. Writ or summons Continued. Adding parties, 666. Entire omission of party, 666. Return time or place, 666. The ad damnum, 668. The teste, 668. Name or style, 669. Signature, 669. Date, 669. Place of teste, 669. By affixing a seal, 670. Amendment of scire facias, 670. When used as a declaration, 671. Writ issued from court other than that which has the record, 671. Application and leave to amend, 671. Waiver of objections, 671. Leave necessary, 671. Notice of motion, 672. Leave discretionary, 672. Executions. To conform to judgment, 672. Omission of direction, 673. To correct mistakes, 673. Error in name, 673. The caption, 673. Direction, 673. To conform to praecipe, 673. Want of seal, 674. Signature, 674. The teste, 674. Return day. Term or place, 674. Regarded as amended, 675. Retroactive effect of amendment, 675. Amendment discretionary, 675. AMOUNT IN CONTROVERSY. Amount claimed. Jurisdiction determined by, 703. Amount recovered, 704. Wrong amount claimed, 704. ' Amount alternatively stated, 704. Erroneous claim, 704. Amount need not be set forth in declaration, 704 Counter-claim and set off, 704. Amendments allowed, 705. In actions ex delicto, 705. When amount is unliquidated, 705. Damage claim and not the evidence, 706. Damage claim not allegations of value, 706. Replevin. Value as claimed, 706. In suits on bonds, 706. Real debt and not claim or penalty, 707. Penalty raises presumption of claim, 707. Amount of claim uncertain or not alleged, 707 Waiver of interest, 708. Waiver of amount of recovery, 709. Amount remitted. Jurisdiction conferred, 707. Jurisdiction unaffected, when, 708. Discount, 708. Voluntary credit, 708. Credits or payments, 708. Amount remitted on appeal, 709 jurisdiction ousted, 709. Demurrer sustained, 709. 1070 INDEX. AMOUNT IN CONTROVERSY. Amount remitted Continued. Set-off successfully interposed, 709. Payments pendente lite, 709. Amount reduced by set-off, 709. Divided debts, 709. Jurisdiction not conferred on appeal, 710. Reduction by amendments, 710. Preventing appeal, 710. Fictitious amount. Bringing case within jurisdiction, 710. Discretion of court to decide whether attempt was made to evade law, 711. Exemplary damages claimed, 711. No presumption of bad faith, 711. Honest mistakes, 711. Fictitious set-off, 711. On appeal, 712. Real amount. Controlling criterion of jurisdiction, 712. Amount shown by evidence governs jurisdiction, 713. Amount shown by record and pleadings, 714. Amount recovered, 714. Action arising out of demand whose total sum exceeds limit, 715. The real value, 715. Exemplary damages, 715. Double damages, 715. . Attorney's fees, 715. Courts not bound by allegations but will investigate question, 715. Right to appeal, 716. Affidavit showing amount, 716. Amount must appear affirmatively from record, 716. Burden of proving jurisdiction, 716. Amount not presumed, 717. Want of jurisdiction, 717. Dismissal of case, 717. Amount unaffected by agreement of parties, 717. Appearance or appeal cannot confer jurisdiction, 718. Amount not dependent on collateral effect of judgment, 718. Difference between value found and judgment, 718. Contingent loss not calculable, 719. Amount must be pecuniary. General rule, 719. Market value not essential, 719. Statutes of Indiana, 719. Appellate court, 719. Accrued interest. When calculable in determining amount, 719 Excluded by statute, 720. Interest does not necessarily oust jurisdiction, 720. In assumpsit, 720. In debt and covenant, 720. Judgment, 720. After suit brought, 720. Interest prior to suit brought, 721. Interest accruing pendente lite, 721. Aggregated amount. Several plaintiffs, 721. In appeals, 721. In admiralty cases, 722. Cases consolidated, 722. Cases improperly joined, 722. Several defendants, 722. Several claims in one suit, 722. Several items in one demand, 723. Several penalties, 723. Several count-', 723. 107 I INDEX. AMOUNT IN CONTROVERSY. Aggregated amount Continued. Divided claims or debts, 723. Claim acquired by assignment, 723. Value and damages consolidated, 724. Judgment and counterclaim consolidated, 724. . Unaggregated amount. Several claims in one suit, 724. Several promises on one instrument, 724. Several lien claims in one suit, 725. Claim and set-off cannot be united, 725. On appeals, 725. Judgments cannot be united, 726. On appeals to supreme court of United States, 726. In admiralty, 726. Value distinguished from amount. Property rights involved, 726. Suits in ejectment, 727. In bills quia timet, 727. Enforcing liens against land, 727. Suits annulling instruments, 727. Value of an office, 728. Specific personal property, 728. Amount immaterial. Special statutory enactments, 728. Exception to general rule, 728. Courts of various states. Jurisdiction independent of amount, 728..,, 729, 730. Statutes strictly construed, 729. Appeaable amount. When plaintiff appeals, 731. On appeal from refusal by court to enter judgment, 732. The evidence produced, 732. Defendant's counterclaim, 732. When defendant appeals; no counterclaim filed, 732. The amount claimed below, 733. Recovery and not claim, 732. Counterclaim filed, 734. In intermediate appeals, 735. Alternative and general statements, 735. Claiming a icduction of judgment, 735. Counterclaim must be proved, 735. Difference between counterclaim and amount allowed, 735.. Local Statutory provisions. Alabama. Circuit court, 735. Montgomery. City court, 73. Justices of the peace, 736. Chancery courts, 736. -Arkansas. Circuit court, 736. County courts of common pleas, 736. Justices of the peace, 736. California. Supreme court, 736. District courts, 737. Justices of the peace, 737. Connecticut. Superior courts, 737. Court of common pleas, 737. Colorado. Court of appeals, 737 Supreme courts, 737. Dakota. District courts, 737. Florida. Supreme court, 737. Justices of the peace, 737. Georgia. Superior court, 737. Justices of the peace, 737. District courts, 737. Illinois. Supreme courts, 738. County courts, 738. Justices of the peace, 738. 1072 INDEX. AMOUNT IN CONTROVERSY. Local Statutory provisions Continued. Indiana. Supreme courts, 738. Appellate court, 738. Circuit courts, 739. Court of common pleas, 739. Justices of the peace, 739. Idaho. Probate courts, 739. Iowa. District courts, 739. Supreme court ; 739. Justices of the peace, 740. Kansas. Supreme court, 740. District court, 740. Justices of the peace, 740. Kentucky. Court of appeals, 740. Superior court, 740. County courts, 740. Circuit court, 740. Justices of the peace, 740. Louisiana. Supreme court, 741. Court of appeals, 741. District courts, 741. Parish court, 741. City courts, 7.11. Justices' courts, 741. Maine. Supreme judicial court, 742. Court of appeals, 741. District court, 742. Justices of the peace, 742. Maryland. Circuit court, 742. Courts of equity, 742. County courts, 742. Baltimore city courts, 742. Massachusetts. Supreme judicial court, 742. Superior courts, 742. Court of common pleas, 743. District police courts, 743. Justices of the peace, 743. Boston municipal courts, 743. Michigan. Circuit court, 743. Equity courts, 743. Justices of the peace, 743. Minnesota. Justices of the peace and district courts. 743. Mississippi. Supreme court, 743. Circuit court, 743. Justices of the peace, 743. Missouri. Supreme court, 743. Court of appeals, 743. Circuit court, 743. Justices of the peace, 744. Nebraska. Probate court, 744. County courts, 744. Justices of the peace, 744. New Hampshire. Court of appeals, 744. Court of common pleas, 744. Justices of the peace, 744. New Jersey. Supreme court, 744. District courts, 744. Justices of the peace, 744. Naw Mexico. District courts, 745. New York. Court of appeals, 745. Supreme court, 745. I Encyc. PL & Pr. 68. 1073 INDEX. AMOUNT IN CONTROVERSY. Local statutory provisions Continued. Marine court, 745. County courts, 745. City courts, 745. District courts, 745. Justices of the peace, 745. North Carolina. Superior courts, 745. City courts, 745. Justices of trie peace, 746. Ohio. Court of common pleas, 746. Justices of the peace, 746. Pennsylvania. Supreme court, 746. District court, 746. Court of common pleas, 746. Justices of'the peace, 746. South Carolina. Justices of the peace, 746. Tennessee. Superior courts, 747. County courts, 747. Chancery courts, 747. Justices of the peace, 747. Texas. Supreme court, 747. Court of appeals, 747. County court, 747. District courts, 748. Justices of the peace, 748. United States. Supreme court, 748. Circuit court, 748. Utah. Justices of the peace, 748. Vermont. County courts, 748. Justices of the peace, 748. Virginia. Supreme court, 748. County courts. 749. Justices of the peace, 749. Washington. Supreme court, 749. Superior court, 749. West Virginia. Supreme court, 749. Wisconsin. Justices of the peace, 749. Wyoming. Justices of the peace, 749, ANOTHER SUIT PENDING. Generally. Trial of plea of another action pending, 32. One suit in admiralty as bar to another, 258. As ground of abatement. General statement of rule, 750. Pendency of former suit in same jurisdiction, 750. Rule extends to equity, 751. Actions in rem and in personam, 751. Election of remedies, 751. What constitutes an action, 751. Suit pending in equity, 751. Rule in equity same as at law, 752. Plea in equity. Former suit at law, 752. fcaw and equity administered by same court, 752. Election between suit in chancery and action at law, 752. Former suit, 752. Suits subsequently instituted, 752. Writ of error subsequently sued out, 753. Writs bearing same date, 753. Writs sued out the same day, 753. Writs served at different times on same day, 753. Suits simultaneously commenced, 753. Pending suits, 754. Action must be "commenced," 754. 1074 INDEX. ANOTHER SUIT PENDING. As ground of abatement Continued. Process necessary, 754. Pendency of former action must be averred and proved, 755. Parol evidence of pendency, 755. Erroneous dismissal of former suit, 755. Discontinuance or dismissal of first suit, 755. Former proceeding in rent; final disposition of, 756. Discontinuance after plea, 756. Discontinuance before trial, 756. Former suit. Evidence of termination, 756. Payment of costs of first suit, 756. Pendency of writ of error or appeal, 756. Reversal on appeal, 757. Void appeal, 757. Substantial identity of parties required, 757. Test of identity of parties, 758. Identity of plaintiffs, 758. Co-plaintiffs, 758. Plaintiff not a party, 758. Where parties are reversed, 758. In action for accounts, 758. Exceptions to rule requiring, 759. In qui tarn action for penalties, 759. Actions for breach of official bonds, 759. In cases of compulsory set-off, 759. Counterclaims, etc., 759. Suits by one of a class, 759. Parties in privity, 760. Pendency of garnishments, 760. Identity of defendants, 760 Two suits must be for same cause, 761. Test of identity of matters involved, 762. Subsequent suit upon new or different title, 762. Attachment suits and personal actions, 762. Attachments in chancery, 762. Splitting actions, 762. Enforcement of liens and mortgages and personal actions for debt, 763. Different relief obtainable, 763. Formal differences in actions, 763. Same jurisdiction. Suits in foreign jurisdictions, 764. What jurisdictions regarded as foreign, 764. State and federal courts, 765. Suits in different federal courts, 765. Garnishment in foreign jurisdictions, 765. Attachments in other states. 766. Where former suit is defective, 766. Accidental destruction of papers, 767. Ground for continuance or stay. Garnishment of defendant, 767. Appeal pending, 767. Cross-actions, 768. \ Concurrent attachments, 768. Appeal between other parties, 768. Suit in equity, 768. Stay of proceedings. General rule, 768. Extent of discretion, 769. In case of defective answer in abatement, 760. Pendency of writ of error, 769. Pendency of garnishment, 770. Suit in foreign jurisdiction, 770. Suits in equity, 770. 1075 INDEX. ANOTHER SUIT PENDING Continued. Taking objections at common law. Plea in abatement, 770. Not a plea in bar, 771. Qui tarn actions, 771. Evidence under general issue, 771. At what stage of the proceedings, 771. Requisites of the plea, 771. Plea must be certain and not argumentative, 771. General or special imparlance, 771. Stating court in which action pending, 771. Referring to record, 771. Averring that action is still pending, 771. Plea must be free from duplicity or repugnancy, 771. Evidence to prove pendency, 772. Showing that court has jurisdiction, 772. Demurrer to plea, 772. Replication to plea, 772. Verification by affidavits, 772. Showing that both suits are for same cause, 772. Concluding with prayer, 772. Dismissal on motion, 773. The proper judgment, 773. Taking objections in equity. By demurrer, 773. By plea in abatement, 773. By answer or motion, 773. Suit brought in name of infant, 773. Form of plea, 773. Annexing former bill by reference, 774. Verification of plea, 774. Proceedings upon plea, 774. Reference to master, 774. Master's report, 774. Setting down plea for argument, 775. Taking objections under Codes. By demurrer or answer, 775. By motion, 775. Waiver of objection, 775. At what stage of the proceedings, 775. Answers in abatement, 776. Necessary averments in answer, 776. Ambiguity in answer, 776. Judgment on sustaining answer, 776. Annexing copy of record, 776. Separate findings, 776. Joinder with matter in bar, 776. Taking objections in admiralty. At what stage, 776. Special plea. Declinatory exception, 776. ANSWERS GENERALLY. Amendments of answers. See AMENDMENTS. Answers in admiralty cases. See ADMIRALTY. ANSWERS IN CODE PLEADING. Generally. DENIALS. See that title. What the answer shall contain. Code provisions, 779. Distinction between denials and new matter, 780. Answers in abatement on ground of pendency of another suit, 776. New Matter. Definition, 830. General nature, 830. Must be pleaded, 830. Evidence of defense not set up, 831. Allegation on information and belief, 831. Manner of pleading, 831. Giving color. Confession and avoidance, 832. Not real party in interest, 832. IOJU INDEX. ANSWERS IN CODE PLEADING. New Matter Continued. Allegation of legal notice, 832. Payment, 833. Fraud, 833. Want of consideration, 834. Justification, 834. Usury, 835. Illegality of contract, 835. Duress, 835. Accord and satisfaction, 835. Estoppel in pais, 835. Res judicata, 836. Statute of limitations, 836. Equitable defenses, 836. Contributory negligence, 836. Statute of frauds, 837. What constitutes new matter, 837. Equitable defenses, 837. Matter in abatement, 838. Partial defenses. How to be pleaded, 840. Partial failure of consideration, 840. Mitigating circumstances, 841. Action of pleader, 841. Facts as complete defense, 841. Payment, 842. Res judicata, 843. Estoppel in pais, 843. Fraud, 844. Illegality of contract, 844. Matters in justification, 845. Assault and battery, 845. Trespass quare clausum fregit, 845. Slander, 845. False imprisonment, 846. By officers, 846. Statute of limitations, 846. Contributory negligence, 847. Statute of frauds, 847. Want and failure of consideration, 848. Leave and license, 848. Champerty, 849. Tender, 849. Accord and satisfaction, 849. Release, 849. Ratification, subrogation and rescission, 849. Award, 849. Immaturity of indebtedness, 849. Discharge in bankruptcy, 849. Usury, 850. Objection to statute or ordinance, 850. Bona fide purchaser, 850. Title in action of trespass, 850. Liens, 850. All matter in avoidance, 851. Not properly performed, 851. Release of guarantors, etc., 851. Mistake, 851. Mining rules and customs, 851. Joinder of defenses. General rule, 852. Legal and equitable defenses, 852. Manner of pleading several defenses, 852. 1077 INDEX. ANSWERS IN CODE PLEADING. Joinder of defenses Continued. Completely stating each defense, 852. Separate statement of each defense, 853. -Matter in abatement and matter in bar, 854. No formal commencement or conclusion to mark each separate de- fense, 854. Where inconsistent defenses are allowed, 855. Actions on notes, 857. Denial and affirmative defenses, 857. Denial of contract with plea of want of consideration, 857. What defense may be pleaded with general denial, 857. What are inconsistent defenses. A question of fact, 857. In real actions, 858. In action for slander or libel, 858. In actions for assault and battery, 858. General denial and plea of release, 858. General denial and statute of limitations, 858. All affirmative defenses may be joined, 859. Fraud and breach of warranty, 859. Statute of limitations joined with other defenses, 859. Possible for both defenses to be true, 859. Waiver of defect of inconsistent defenses, 860. Remedies for inconsistency, 860. Joint and several answers. Right to join in an answer, 860. Several defenses, 860. How a joint answer is construed, 861. Right to interpose a separate answer, 861. Defense in one answer enuring to all, 861. Adoption of answer, 862. ANSWERS IN EQUITY PLEADING. Generally. Amendment of answers. See AMENDMENTS. Answers in actions for accounting. See ACCOUNTS AND ACCOUNTING. Definition, 865. Affidavits of merits to extend time to answer, 355. Taking bill fro confesso, 895. Form. Caption, 865. Parties, 865. Severance, 865. Adopting codefendant's answer, 865. Reservation, 866. Substance, 866. Conclusion, 866. Oath, necessity for, 867. Corporations, 867. How administered, 867. Before whom taken, 868. Signature, 868. Signature by counsel, 868. Waiver of, 868. Modification of rule requiring, 868. Jurat, 869. Immaterial defects, 869. Nature of answer. Denials and new matter. 870. Admitting case made by bill, 870. Answer to part of bill, 870. Defenses, 870. Several defenses, 870. Bill seeking relief as well as discovery. 870. Not demurrable, 871. Cross bill necessary for affirmative relief, 8/1. Cross-bills. Specific performance, 871. 1070' INDEX. ANSWERS IN EQUITY PLEADING. Nature of answer Continued. When answer may seek affirmative relief, 872. Stipulation that answer might be treated as cross-bill, 872. Failure to use cross-bill. Waiver of objection, 872. Requirements. Must be full, 873. Full answer. Method of compelling, 874. Matters which defendant need not answer, 874. Must be certain, 875. Illustrations of certainty, 876. Evasive answers. Negatives pregnant, 876. Must be on knowledge, information, remembrance or belief, 876. Answer denying knowledge or information, 877. Answer in effect denying information, 877. When answer need not express belief, 877. When answer need not deny information, 877. Must state facts, 878. Waiver of objection as to inconsistent defenses, 878. Must not contain inconsistent defenses, 878. Answer as to facts not of recent occurrence, 878. Defenses taken by answer. Usury, 878. General charge of, insufficient, 879. Waiver of objection of lack of legal precision, 879. Statute of limitations, 880. How pleaded, 880. Laches, 880. Innocent purchaser, 880. How pleaded, 881. Undue influence, 882. Res judicata, 882. How pleaded, 882. Statute of frauds, 882. When unnecessary to plead statute, 882. Fraud, 883. Want of jurisdiction, 883. Want of notice of protest, 884. Set-off, 884. Mistake, 884. Insufficiency of complainant offer to do equity, 884. Want of capacity, 884. Invalidity of mortgage sought to be foreclosed, 884. Estoppel, 885. Subrogation to rights of prior mortgage, 885. By persons under disability. Married women, 885. Answer where husband is complainant, 886. Superannuated persons, 886. Lunatics, 886. Infants, 886. Corporations, 886. Dispensing with seal, 887. Suppressing answer without seal. 887. Answers in patent cases. Defenses allowed by statute, 887. Waiver of defense not set up by answer, 888. Defense of prior use, 888. Non-patentability, 889. License to use invention, 889. Want of knowledge of existence of patent, 889. Non-compliance of patentee with statutory requirements, 889. Joinder of several defenses. Demurring, answering and pleading to different parts of bill, 889. Meeting bill by several modes, 889. 1079 ANSWERS IN EQUITY. Joind :r of several defenses Continued. No plea or answer to part demurred to, 890. Answer overruling plea, 890. Disclaimer and answer inconsistent, 890. Filing and serving. Necessity for filing, 891. Time for filing, 891. Filing after expiration of time, 891. Waiver of objection at the time for filing, 891. Service of answer, 892. Time of serving, 892. Service after expiration of time, 892. Waiver of service, 892. Striking answers from file. Irregular answers may be stricken, 81 Illustrations of irregularity, 892. Waiver of irregularity, 892. Lack of signature or oath, 893. Failure to entitle, 893. . Unauthorized erasures and interlineations, 893. Correction of formal error, 893. Evasive answer, 893. Answer filed by person not named in bill, 894. Scandalous matter, 894. Compelling answer by attachment. General rule, 894. Statutes and rules in most jurisdictions, 894, 895. Exceptions to answers. Definition and object, 895. Of two kinds, 896. For insufficiency. When they lie, 896. Verbal criticism. Slight defects, 897. Frivolous exceptions, 897. Material allegation or interrogatory unanswered, 897. Confined to discovery, 897. Under general interrogatory, 898. Several defendants, 898. Setting up questions of law, 898. Waiver of right to except, 898. When they do not lie, 898. New matter, 898. Failure to answer. Admission of truth, 899. Interrogatory as to books and papers, 899. Interrogatories substantially answered, 899. Objection of res judicata, 899. Disclaimer, 899. Irregularities in practice, 899. Answer not under oath, goo. Answer of corporation, 900. Answer of attorney-general, 900. Answer of infant, 900. Answer in aid of plea, 900. Answer of guardians, 900. Answer used as plea, 900. Plea standing for answer, 901. Exceptions to part of bill not covered by plea, 901. Prohibiting exceptions, 901. Answer accompanied by plea or demurrer, 901. Motion to strike case from calendar, 902. Plea confined to relief prayed, 902. Plea or demurrer overruled or allowed, 902. Form, 902. In writing, 902. Signature by counsel, 902. Properly entitled, 903. 1080 INDEX. ANSWERS IN EQUITY. Exceptions to answers Continued. Should be specific, 903. What should be stated, 903. Mode discretionary, 903. Time, 903. Rules and statutes, 903. Enforcing time, 904. Exceptions not filed in time, 904. After replication, 904. In the appellate court, 904. After reference for impertinence, 905. Proceedings on exceptions, 905. Endorsing, filing and serving copy, 905. Setting down for hearing, 905. Two defendants, 905. Disposal of exceptions, 905. Reference to master, 905. Allowed in part, 906. Decisions directly by the court, 906. Appeal from order sustaining exceptions, 906. When disallowed, 906. Reading at trial, 907. Dissolution of injunction, 907. Further answer. Procedure, 907. Filing further answer, 908. Further answer also insufficient, 909. Form, 909. New exceptions, 909. Amendments insufficiently answered, 910. Bills stating new case, 910. Amended bill, 910. Answers as evidence. Responsive answers. General rule, 910. Charging and stating part of bill, 910. Answer connected with responsive matter, 913. Rules of evidence apply, 913. Facts not stated in bill, 913. Voluntary answer, 913. Reason for general rule, 913. Sworn bill and answer, 914. Answer conclusive, 914. Answer entitling complainant to decree, 915. What is responsive, 916. Material facts, 917. Answer to premises of bill, 918. Test, 918. Setting forth all the facts, 919. What is not responsive, 919. Asserting a right not responsive, 919. Matter in avoidance, 919. Illustrations, 919. Facts in answer distinct from those in bill, 919. Statement not called for, 920. Answer not stating all material facts, 920. Answer containing new matter, 920. Illustrations, 921. Usury, 922. Alleging cancellation of agreement, 923. Qualifications of rule, 923. Hearing on bill and answer, 924. Even though replication be filed, 925. Statutory change of rule, 926. ic8l INDEX. ANSWERS IN EQUITY. Answers as evidence Continued. Hearing on bill, answer and replication, 926. Admissions in answer, 927. Admissions conclusive, 927. Questioning by proofs, 928. Relief from improvident admissions, 929. What admitted, 929. Evasive answer, 930. Fact in issue, 930. Decree based on admissions, 930. Failure to fully answer, 930. Qualification of rule, 931. Overcoming answer. By witnesses and circumstances, 932, 933, 934, 935- Full proof, 935. Inadequacy of price as corroborating circumstances, 937. Two defendants denying same fact, 938. Dismissal of bill, 937. When answer overthrown, 938. The witnesses, 939. The corroborating circumstances, 939. Where bill is sworn to, 940. Illustrations of corroborating circumstances,' 940. By circumstances alone, 941. Answer inconsistent or contradictory, 942. By circumstances alone. In cases of fraud, 942. Impeaching credibility of defendant, 942. Answer contradicted on material point, 943. Discrediting testimony by introduction of independent evidence, 943- Answer not direct and positive. General rule, 943. Evasive answers, 944. Answers on information and belief, 944. Answers on opinion and belief, 946. Answers denying knowledge, information and belief, 947. Answers showing lack of personal knowledge, 947. Answers of defendant who has no personal knowledge, 947. Answers on hearsay, 947. Answer alleging ignorance, 947. Unsworn answer not evidence, 948. Answer sworn before unauthorized party, 948. Evidence against defendant, 949. Treated as valid answer by complainant, 949. Answer where oath is waived. Right of defendant to make oath and use his answer as evidence, 949. Statutory changes of rule, 949. Answer by defendant, as evidence against co-defendant, 951. Nominal defendant, 952. Husband and wife, 953. Principal and agent, 953. Failure of one to answer, 953. Harmless error, 953. Qualifications of rule, 953. Privies in estate, 954. Where interests are joint, 954 Fraudulent consolidation, 954. Where one defendant refers to answer of another, 954. Where one claims under another, 954. As evidence for co-defendant, 954. As evidence for co-defendant. Qualification of rule, 955. Answer of infant, 955. 1082 INDEX. \NSWERS IN EQUITY. Answers as evidence Continued. As evidence against him, 955. As evidence for him, 955. Answer of adult co-defendant, 956. Answer of corporations, 956. Answer of party interested or incompetent, 957. Answers in injunction proceedings, 957. When injunction dissolved, 958. Answer not responsive, 958. Allegations unanswered, 958. Answers as evidence in other causes. Suits in equity. Answer not an estoppel, 959. Suits in equity, as evidence against defendant, 959. Suits in equity, 959. Action at law. As evidence against defendant, 960. As evidence for defendant, 961. Hearsay admissions, 961. Weight as evidence, 961. Answers as evidence in issues sent to jury, 961. Dependent upon circumstances, 961. Effect as evidence, 962. APPEALS. See APPEAL BONDS. Appellate jurisdiction depending upon amount in controversy. See AMOUNT IN CONTROVERSY. Appeals in admiralty causes. See ADMIRALTY. Appeal fron order of court granting or refusing additional allowances of costs. See ADDITIONAL ALLOWANCES. Appeals from judgment on agreed case. See AGREED CASE. Taking objection of non-joinder on appeal, 17. Raising objection of variance between writ and declaration on appeal, 20. Appellate proceedings in equitable actions for accounting, 103. Amendments in appellate courts. 607-616, Review of discretion, in granting or allowing amendments, 524-534. APPEAL BONDS. Generally. Definition. Character of contracts, 964. Distinction in securities, 964. Bail in error, 964. Nature of obligation, 964. Appeal bonds in admiralty causes, 279. Purely statutory. Purpose of bond, 965. At common law, 965. Construction of statutes, 965. Supersedeas bond, 965. Power to require in absence of statute, 965. Modern practice, 965. Requirement mandatory. Power of legislature to require bond, 965. Power of courts to dispense with security, 966. Strict compliance with statute, 966. Power of court to accept different security, 967. Certified check, 967. Recognizance and bond, 967. W T here form is disregarded, 967. Unnecessary bond, 967. No bond given ; appeal dismissed, 967. Orders of courts. Terms of orders to be substantially followed, 967. Conditions, 967. By whom given. Party to suit or legal representatives, 967. Separate parties aggrieved by same judgment, 968. One party appealing in name of all, 968. 1083 INDEX. APPEAL BONDS. By whom given Continued. Co-partner united in interest, 968. Parties allowed to come in, 968. Official capacity of appellant, 968. Sufficiency of bond, 968. Conditions of bond, 968. Appellants exempted. State, 968. Public corporations, 968. County official, 969. Executors and administrators, 968. Construction of exemptions, 969. Substituted appellant, 969. Married women, 969. Trustees, 969. Officials, 969. Towns, 969. Tax collector, 969. Discretionary power, 970. Raising question of exemption, 970. To whom payable. Person designated by statute, 970. Wrong payee. Allowing new bond to be filed, 970. Bond payable to stranger, 970. One named other than one required, 970. Infant appellee, 970. Appellee in absence of other designation, 970. Payable to state, 977. Joint obligees, 971. Assignor, 971. In tax suits, 971. Sufficient reference, 971. Separate adverse pa ties, 971. Who is adverse party, 971. Action on official bond, 971. On separate appeals. Where one obligation is sufficient, 972 Separate decisions consolidated, 972. Distinct orders, 972. One undertaking to cover two appeals, 972. Separate obligation for each appeal, 972. On second appeal, 973. Execution of bonds. Necessity for seal, 973. Signature, necessity for, 973. Signature of sureties, 974. Time of signing, 975. Name not appearing in bond, 975. Execution in blank, 975. Place of signature, 375. By joint appellants, 974. By married woman, 974. By agent. Presumption of authority, 976. Execution without authority. Subsequent ratification, 97/ Execution in name of partnership, 977. Delivery. Not binding until delivered, 977. Delivery to clerk of court, 977. Proof of delivery, 977. What constitutes delivery, 977. Contents and sufficiency. Amount. Statutory directions, 977. Amount larger than required, 978. Unsecured judgment, 978. In suits affecting real property, 978. Reduction of amount, 978. Amount of judgment. Interest, 979. 1084 INDEX. APPEAL BONDS. Contents and sufficiency Continued. Description of amount, 979. Amount less than that required, 979. What costs included, 979. Costs and damages, 979. When amount is discretionary, 980. Where there are several appeals, 980. Compliance with order fixing amount, 980. Amount to be fixed by "court," not judge, 980. Effect of giving new bond where amount of first bond was too small, 981. Review of action of court in fixing amount, 981. Description of judgment, 981. Omission of recital, 982. Offense in criminal appeal, 982. Description of amended judgment, 983. Description of court, 983. Reciting judgment in full in undertaking, 983. Condition of bond, 983. Illustrations of sufficiency, 983. Substantial compliance, 983. Construction of conditions, 984. When costs only recoverable, 984. Prosecution with effect, 984. Omission of stipulation required by statute, 984. More onerous condition than statute demands, 985. Altering conditions in statute, 985. Waiver of defects, 985. Time for filing. Time designated by statute, 985. Where statute names no time, 986. Construction of statutes, 986. When waiver made, 987. Appeal granted in term, 987. After rendition of judgment, 987. Order of adjournment, 987. Allowing new bond after expiration of time, 987. Ground for dismissal, 987. Computation of time, 988. Meaning of term " rising of court," 988. Power to extend statutory time, 988. Extending time when fixed at discretion, 988. After notice of appeal, 989. Notice of appeal before undertaking, 989. Filing same day as notice of appeal, 989. Date of filing, 989. Recitals as to date of filing, 989. Presumption of filing on day of justification, 989. Right of appellant to show that bond was seasonably filed, 989. Official mistake preventing filing in due time, 990. Amendments. When defect renders bond void, 990. Where irregular merely, 990. Effect of lack of jurisdiction, 990. When unnecessary, 991. Substantial compliance with statute. 991. Bond sufficient if legal effect is all right, 992. Directory provisions of statute, 992. Strict compliance with substantial requirements, 993. Recognizances, 993. Power to amend without statutory authority, 993. Power implied from general authority to amend proceedings, 993. Effect of curative statutes, 993. 1085 INDEX. APPEAL BONDS. Amendments Continued. Discretion of court, 994. Construction of statute allowing amendment, 994. Review of order refusing or allowing amendment, 995. Official negligence, 995. Where statute directory, 996. Right of appellee to have statutory bond, 996. Right of appellee to compel dismissal, 996. Right of appellee to compel correction of errors, 997. Where motion to amend is made, 997. Time of motion to amend, 997. Practice on motions to amend, 997. Order for amendment, 997. Trivial errors, 997. Motion should be accompanied by proper bond, 998. Offer to file proper bond, 998. Proper bond filed before motion to dismiss granted, 998. Contravening public policy, 999. Appellee ratifying bond varying from statute by enforcing it as common-law contract, 999. Common-law bond. Bond invalid as statutory obligation, 998. Instrument containing essentials of valid contract, 996. Ordinary canons of interpretation, ion. Appeals in forma pauperis. Requisites of affidavit, 999. Allegations in affidavits, looo. Express statutory authority for such appeals, 999. Waiver of defects by appellee. Appellee may waive all security whatever, IOOO. Technical steps may be waived, 1000. What amounts to waiver of defects, 1001. Objections must be timely, 1001. Statements of case, 1001. Acceptance, 1001. Motion to dismiss. Appellant cannot move to dismiss for defects in his own bond, 1002. Defects specifically pointed out, 1002. Estoppel in suit on bond, 1002. The sureties. Necessary qualifications, 1002. Necessary party as surety, 1002. Party materially interested, 1002. Representative party, 1002. Husband as surety, 1002. Official as surety, 1002. Partnership as sureties, 1002. Acceptance of surety. Discretion, 1003. Affidavit of worth, 1003. Effect of disqualification of surety, 1003. Surety companies, 1003. Statutory qualifications, 1003. Surety on bond in suit, 1004. Attorneys as sureties, 1004. Personal responsibility of sureties, 1004. Number of sureties required, 1004. Exceptions to sureties. Under code procedure, 1005. Serving notice of exception, 1005. Justification, 1005. Failure to justify, 1006. Effect of failure to justify, 1006. Time within which sureties must justify, 1007. Acceptance of surety for specified part, 1006. Bond acting as supersedeas, 1006. 1086 INLEX. APPEAL BONDS. The sureties Continued. At common law, 1006. Approval of bond. Necessity for approval, 1007. Waiver of approval by appellee, 1007. Approval out of court, 1007. By deputy clerk, 1008. Jurisdiction to approve vested in a class, 1008. Where official acts de facto, 1008. Judicial, not ministerial power, 1008. Delegation of power, 1008. Taking bond in open court, 1008. Approval presumed, 1008. How made, 1008. Indorsement on bond, 1008. Approval of form of bond, 1009. Approval of irregular bond, 1009. Irregularities in form, 1009. Effect of approval, 1009. How shown. Record, 1009. Date of approval. How shown, 1009. Approval a question of fact, 1009. Review of approval, 1010. When approval is reviewable, 1010. Subsequent insol-vency, joio. Objections not made in trial court, roio. Rescinding approval, 1010. Presumption of approval. Costs, 1010. Construction of contract. Intention of parties, ion. Reference to record, 1012. Variation in names, 1012. Erroneous description, 1012. Variance, 1012. Extension by implication. Limitation of rule, 1013. When liability accrues. Final judgment, 1013. When liability accrues. Return of execution against appellant, 1013. Extension by implication, 1013. When liability accrues. Interlocutory judgment, 1014. Modified judgment, 1014. Dismissal, abandonment or withdrawal of the appeal, 1014. Second appeal, 1014. Nature of contract, 1014. Measure of liability, 1015. Judgment in rent, 1015. Amount of judgment, 1015. Rents and profits, 1015. Liability of principal, 1015. Statutory amount, 1015. Judgment of foreclosure, 1015. Interests and costs, 1016. Fixed sum as penalty, 1016. Joint bond, 1014. Contract of suretyship joint, 1015. Successful appellant, 1015. discharge of sureties. Legal satisfaction, 1016. Reversal on appeal, 1017. Enlargement of claim, 1017. Agreement of parties, 1017. Statutory increase of liability, 1017. . Amendment aiding new party, 1017. Change of issues, 1017. Tender, 1017. 1087 INDEX. APPEAL BONDS. Construction of contract Continued. Payment of affirmed judgment, 1017. Remedies of obligee. Independent action on contract, 1018. Pleading ignorance and fraud, 1018. Condition unperformed, 1018. Statutory remedies cumulative, 1018. Estoppel from questioning sufficiency of bond, 1019. Recitals conclusive, 1019. Estoppel. Jurisdictional defects, 1019. Impeachment of judgment, 1019. Successive appeals. Sureties on prior appeal. Liability on subsequent appeal, 1020. Novation, 1020. Waste, 1020. New trial ordered. Bond for costs, 1020. Subrogation of sureties. Application of doctrine of subrogation, 1020. Paying judgment and securing rights of appellee, 1020. Execution of bond by executor or administrator, 1021. Record on appeal. Certificate of clerk, 1021. Sending up bond or copy to appellate court, 1021. APPEARANCE. Address of attorneys, 236. APOSTLES. In admiralty appeals, 281. ARBITRATORS. Adjournment by arbitrators, 247. ARGUMENTATIVE DENIALS. See DENIALS. ASSAULT AND BATTERY. See AFFRAY. Single cause of action for one assault, 161. Joining actions for assault and battery and for slander, 188. What defenses may be pleaded with general denial, 858. ASSIGNMENT. Assignment of claim. As ground of plea in abatement, n. ASSIGNMENT FOR CREDITORS. Equity suit for accounting to proper parties, 105. ASSIGNMENT OF ERRORS. In admiralty appeals, 280. ASSUMPSIT. Affidavits of merits in actions of assumpsit. See AFFIDAVITS OF MERITS. Joinder of other actions with assumpsit, 169. To enforce decree for alimony, 434. ATTACHMENT. See AMENDMENTS IN ATTACHMENT PROCEEDINGS. Compelling answers by attachment. See ANSWERS IN EQUITY. Foreign attachment. In admiralty practice. See ADMIRALTY. Attachment proceedings as an action, 113. To enforce decree for alimony, 435. Prayer. In plea for abatement of attachment, 28. ATTORNEYS. Address of attorneys and their clients under the code practice. See AD- DRESS. Power to take affidavits, 330. Attorneys making affidavits for clients, 326. AWARDS. To be specially pleaded, 849. BANKRUPTCY. Discharge in bankruptcy to be specially pleaded, 849. 1088 1XDEX. BILL IN EQUITY. Address of bill. See ADDRESS. Amendments of bills. See AMENDMENTS. In suits for accounting. See ACCOUNTS AND ACCOUNTING. BILL OF EXCEPTIONS. In agreed cases, 403. BILLS QUIA TIMET. Jurisdiction depending upon amount in controversy, 727. BONDS. See APPEAL BONDS. Amendments of bonds in attachment proceedings, 683. BRIEFS. In admiralty appeals, 282. CALENDARS. Placing admiralty cases on the calendar, 274. CAPACITY TO SUE. Raising objection by plea in abatement. See ABATEMENT. CAPTIONS. In equity answers, 865. CASE MADE. See AGREED CASE. CAUSE OF ACTION. Splitting causes of action. See ACTIONS. What is a cause of action. See ACTIONS. CERTIORARI. Certiorari proceedings as an action, 113. Joinder of certiorari and mandamus, 174. Joinder of proceedings under the codes, 206. CHAMPERTY. As new matter in code answers, 849. CHANGE OF VENUE. Affidavits of merits on change of venue, 355, 373. CIRCUIT COURT OF APPEALS. As a court of admiralty, 252. CLERKS. Affidavits by clerks, 329. CODE PLEADING. See ANSWERS IN CODE PLEADING. Joinder of causes of action under the codes. See JOINDER OF ACTIONS. Abolition of forms of actions. See ACTIONS. COMMISSIONERS. Power to take affidavits, 330. COMMISSION TO TAKE TESTIMONY. In admiralty cases, 285. COMMON LAW. States adhering to the common-law practice, 163. COMPLAINT. Complaints must be drawn upon definite theory, 194. CONDITIONS PRECEDENT. Allegation of proceedings controverted by general denial, 830. CONFESSION AND AVOIDANCE. Answer seeking to avoid complaint, 832, CONSOLIDATION. In admiralty appeals, 280, 289. Jurisdiction dependent upon amount in controversy. See AMOUNT IN CONTROVERSY. CONTEMPT. Proceedings for contempt as an action, 115. Seizing property in hands of receiver, 262. Attachment for contempt to enforce decree for alimony, 437. CONTINUANCE. Sae ADJOURNMENTS. Adjournment and continuance distinguished, 238. On the ground of pendency of another suit. See ANOTHER SUIT PENDING. I Encyc. PI. & Pr. 69. 1089 IKDRX. CONTRACTS. Illegality of, as new matter in code answers, 844. CONTRIBUTORY NEGLIGENCE. Manner of pleading. When set up as new matter, 836, 847. CORPORATIONS. Plea in abatement. Denying corporate existence, 2. Denying incorporation, 10. Denial of capacity of corporation to sue, 10. Misnomer of corporation, 13. Plea by president of corporation, 23. General denial as plea in abatement, 828. Stockholder's suit, corporation as necessary party, 105. Proceedings to charge stockholders are special, 115. Putting corporate existence in issue, 828. Answers in equity suits, 886. Answer of corporations as evidence, 956. COSTS. Additional allowances of costs. See ADDITIONAL ALLOWANCES. Allowing amendments upon payment of costs. See AMENDMENTS. Costs in alimony proceedings. See ALIMONY. Costs upon an agreed case. See AGREED CASE. In admiralty cases. See ADMIRALTY. Costs a creation of statute, 211. Discretionary power of courts, 212. Historical summary of New York Code provisions, 212. Costs to abide the event, 59. Where new trial is granted, 59. Costs of intermediate appeal, 60. Where there is a test action, 61. Jurisdiction of English court of chancery, 211. COURTS. Adjournments of courts. See ADJOURNMENTS. Admiralty courts. See ADMIRALTY. Jurisdiction depending upon amount in controversy. See AMOUNT IN CONTROVERSY. COUNSEL FEES. See ALIMONY. COUNTERCLAIMS. Counterclaims in admiralty. See ADMIRALTY. COVERTURE. Objection of coverture as a plea in abatement. See ABATEMENT. CRIMINAL PROCEDURE. See ABDUCTION; ABORTION; ADULTERY; ACCESSORIES; AFFRAY; AF- FIRMATIONS; AMENDMENTS IN CRIMINAL PROCEEDINGS. CROSS-BILLS. Necessity for affirmative relief, 871. Necessity for filing in actions for accounting, 99. CROSS-LIBEL. See ADMIRALTY. DEATH. Death of parties in admiralty suits, 290. DEBT. Joinder of causes of action, 167. Joinder of debt and assumpsit, 168. Joinder of debt and detinue, 168. Action of debt very technical, 168. DECLARATIONS. See AMENDMENTS. In common-law action of accounts. See ACCOUNTS AND ACCOUNTING. DECREE. In alimony cases. See ALIMONY. Decree based on admissions in answer, 930. 1090 INDEX. DEFAULTS. Affidavits of merits to prevent or to open. See AFFIDAVITS OF MERITS. Respondent's default in admiralty, 263. Waiver of default by amending bills in equity, 493. DEFENSES. Joinder of defenses. See ANSWERS IN CODE PLEADING. Joinder of several defenses in equity answers. See ANSWERS IN EQUITY. DEMURRERS. Taking objection to jurisdiction by, 4. Raising objection of infancy by, g. Raising objection of coverture by, 9. Real party in interest taking objection by, n. Objection on the ground of misnomer, 13. Taking objection of misjoinder by, 14. Taking objection of non-joinder by, 14, 17. Overruling demurrer does not prevent plea in abatement for non- joinder, 17. Objection that suit was premature, 22. Whether plea in abatement may be interposed after demurrer, 5. Waiving plea in abatement by demurring, 36. Testing sufficiency of defendant's plea in abatement, 39. Affidavits of merits to extend time to demur, 355. Amendments after demurrer, 591-595. Answers in equity not demurrable, 871. DENIALS. Generally. Distinction between denials and new matter, 780. Form. What constitutes a good general denial, 782. General denial. " Each and every" allegation denied, 782. Denial of "material" allegations, 782. Counter-averments, 783. Form of general issue, 783. " No allegation true," 783. " States and shows," 782. What constitutes a good specific denial, 783. Specific denial must be certain and definite, 783. Descriptions of allegations denied, 784. Denial of what is between certain specified places, 784. Must be categorical, 784. Facts may be denied as alleged, 785. Hypothetical denial, 785. May contain explanation, 785. May enumerate particulars, 785. Specific denials and their scope. Specific denial precludes general denial, 785^ Specific denials required in some states, 785. Optional to use specific denial, 785. Where instrument for payment of money is sued on, 786. Execution of contract. What put in issue, 787. Suits on notes, 787. Application to specific allegation, 787. Description of specific denials, 787. No issue raised on averment not denied, 787. Evidence to support specific denial, 787. Plaintiff's right to sue, 788. Action for breach of contract, 788. Denial of value, 788. Denial of ownership and possession, 788. Denials in actions for tort, 788. Evasive denials. Quibbles, 789. Denial of execution of deed, 789. Allegations admitted by failure to deny. General rule, 789. What are material allegations, 790. 1091 DENIALS. Allegations admitted by failure to deny Continued. Denial of immaterial allegations, 791. Evidentiary matters, 792. Deraignment of title, 792. Circumstances of aggravation, 792. Value, trespass, and replevin, 792. Legal conclusions, 793. Action for unliquidated damages, 793. Where value is immaterial, 793. Allegations of time, 793. Execution of notes, bills, and written instruments, 794. Allegations of possession and ownership, 793, 794. Plea of release and payment, 795. Actions for goods sold, 795. Signature to instruments, 795. Libel and slander, 795. Pleading a different contract or tort, 796. Mandamus proceedings, 796. Divorce proceedings, 796. Allegations of status and capacity. 796. Negatives pregnant. What is negative pregnant, 796. Objection to this form of denial, 796. Negatives pregnant no denial at all, 797. Good unless objected to, 797. Conjunctive denials, 797. Alternative denial, 797. Literal denials, 798. Wrongfully and maliciously, 798. Particular amount, 798. In manner and form, 799. Allegations of time, 799. General denial coupled with admissions. Denial of all allegations not admitted, 802. Right to use, 802. Weight of authority in favor of allowing, 804. Proper form, 804. Answer must be definite and specific as to admissions, 804. Argumentative denials. Definition, 799. What constitutes argumentative denial. 800. Matters showing that facts do not exist, 800. Actions for torts, 800. Actions on contracts, 800. Ownership. 800 Effect of argumentative dental, 801. Sanctioned in some jurisdictions, 802. Denials of legal conclusions. In general a nullity, 805. Judgment on pleadings, 805. Denial of indebtedness, 805. Denial of fraud, 806. Plea of nil debet, 806. Waiver of objection, 807. Answer containing a legal conclusion, 807. Denial of capacity, 807. Denial that act was "duly" done, 807. Denial of facts impliedly denies the conclusion of law, 808. Denials of knowledge. Provisions of codes, 808. How such denials construed, 808. Form of such denials, 809. Denials upon " information and belief," 810. When denial of knowledge and information cannot be interposed, 811. Practice where defendant does not recollect, 812. INDEX. DENIALS. Denials of knowledge Continued. Denials of information not favored, 812. Denying knowledge of facts presumptively within defendant's knowl- edge, 812. Contents of records, 813. Purchases and sales, 813. Acts of agents and partners, 813. Personal acts, 813. Matters presumptively within defendant's knowledge, 813 Making of contracts and notes, 814. Judgments, 814. Facts not disclosed by record, 814. Letters of administration, 814. Questions of law, 815. Attorney's authority to sue, 815. What may be proved under a general denial. Nature of general denial. The general issue, 816. Allegations in complaint determine its scope, 816. Payment, 817. Ownership of cause of action, 817. Proof that cause of action never existed, 817. To what evidence defendant is limited, 817. Actions on contracts, 818. Ultra vires, 819. Failure of plaintiff to perform, 819. Conditions, 819. Invalidity, 819. Want of consideration, 819. Custom or usage, 819. Sale of goods, 820. Only a part delivered, 820. Sales. Purchase as agent, 820. Actions on judgments, 820. Former recovery, 821. Actions on bills and notes, 820. Alteration, 820. Fraud in obtaining signature, 820. Actions for torts. Trover and conversion, 821. Trespass de bonis asportatis, 821. Replevin suits, 822. Fraud, 823. Malicious prosecution, 823. Negligence of third person, 824. Contributory negligence, 824. Action based on negligence, 824. Abandonment of land, 825. Title in third person, 825. Paramount title in defendant, 825. Ejectment and other matters pertaining to real estate, 825. Statute of limitations, 826. Action on warranty, 826. Trespass quare clausum fregit, 826. Action to quiet title, 826. Forcible entry and detainer, 826. Plaintiff's title to sue, 827. Mitigating circumstances, 827. Statutes of frauds, 827. Existence of corporation, 828. Waiver of plaintiff's incapacity, 828. General denial as plea in abatement. General rule, 827. Existence of partnership, 829. 1003 INDEX. DENIALS Continued. General denial limited in scope by Statute. Rule in Texas, Iowa, Indiana, and Missouri, 829. Conditions precedent, 830. Joinder of defenses. What defenses may be joined with general denial, 857. DEPARTURE. Variance between writ and declaration as ground for plea in abate- ment. See ABATEMENT. DEPOSITIONS. Depositions de bene esse in admiralty cases, 284. DIFFICULT AND EXTRAORDINARY CASES. See ADDITIONAL ALLOWANCES OF COSTS. DILATORY PLEAS. See ABATEMENT IN PLEADING. DISCONTINUANCE. Additional allowance of costs on discontinuance, 228. DISTRICT COURTS. As courts of admiralty. See ADMIRALTY. DIVORCE. See ALIMONY. Divorce and alimony proceedings as an action, 114. Joinder of matters in divorce proceedings, 199. Admissions of allegations not denied, 796. DURESS. Manner of pleading, when set up as new matter, 835. EJECTMENT. Single cause of action for one offense, 162. What may be proved under general denial, 825. Matters in dispute. Jurisdiction dependent upon amount, 727. EQUITABLE DEFENSES. Manner of pleading, when set up as new matter, 836. As new matter in code answers, 837. EQUITY PLEADING. See ANSWERS IN EQUITY PLEADING. Accounting in equity. See ACCOUNTS AND ACCOUNTING. Address of the bill. See ADDRESS. Amendments of proceedings in equity. See AMENDMENTS IN EQUITY. Taking objection of the pendency of another suit. See ANOTHER SUIT PENDING. Pleas in abatement recognized in equity, 2. Same rules as at law, 40. Objections tending to abate suit; how raised, 40. Withdrawal of answer to file plea in abatement, 41. Misnomer. As plea in abatement, 13. Plea of account stated, 100. Joinder of actions at law and suits in equity, 175. Joinder of different causes of action in equity, 180. ESTOPPEL. Manner of pleading, when set up as new matter, 959. Defense taken by answer in equity pleading, 884. As new matter in code answers, 843. EVIDENCE. Answers in equity pleading as evidence. See ANSWERS IN EQUITY PLEADING. Procedure in admiralty cases. See ADMIRALTY. EXCEPTIONS. Exceptions to answers. See ANSWERS IN EQUITY PLEADING. Exceptions to commissioners' report in admiralty practice, 276. EXECUTIONS. Amendments of executions. See AMENDMENTS OF PROCESS. EXECUTORS AND ADMINISTRATORS. Objection to non-joinder of by plea in abatement, 16. 1094 INDEX. EXTRA ALLOWANCES. See ADDITIONAL ALLOWANCES OF COSTS. FALSE IMPRISONMENT. Single cause of action for one offense, 162. Joining actions for false imprisonment and slander, 189. Joinder of actions for false imprisonment and for malicious prosecu- tion, 189. FEDERAL PRACTICE. Amendments of writs and process, 660. FILING ANSWER. See ANSWERS IN EQUITY PLEADING. FORCIBLE ENTRY AND DETAINER. Is a civil action, 116. One cause of action cannot be split, 162. What may be proved under general denial, 826. FORECLOSURE. Joinder of other matters with foreclosure proceedings, 203. Additional allowances of costs, 213, 225. FOREIGN ATTACHMENT. In admiralty practice. See ADMIRALTY. FORMER SUIT PENDING. See ANOTHER SUIT PENDING. FORMS OF ACTION. Abolition of different forms. See ACTIONS. FRAUD. Single cause of action for same fraud, 160. Denials of fraud in answers, 806. As new matter in code answers, 833, 844. Fraud and breach of warranty not inconsistent defenses 859. Defense taken by answer in equity pleading, 883. GARNISHMENT. Garnishment in admiralty practice. See ADMIRALTY. GENERAL DENIAL. See DENIALS. GENERAL ISSUE. See DENIALS. None in common-law action of accounts, 86. Taking advantage of misjoinder under, 14. Taking advantage of non-joinder of plaintiffs in actions on contract, 15- GUARDIANS. Answer of guardian ad lit em. Plea in abatement, n. HABEAS CORPUS. Habeas corpus proceedings as an action, 114. INDICTMENTS. See ACCESSORIES; AFFIRMATION; AFFRAY. Amendment of indictments. See AMENDMENTS IN CRIMINAL PROCEED- INGS. Indictment for abduction. See ABDUCTION. Indictment for abortion. See ABORTION. Indictment for adultery. See ADULTERY. INFANCY. Plea in abatement on the grotind of infancy. See ABATEMENT. Answers in equity suits, 886. INFORMATIONS. Amendment of informations. See AMENDMENTS IN CRIMINAL PROCEED- INGS. INJUNCTION. To secure alimony. See ALIMONY. Additional allowances of costs in injunction suits, 221 Injunction upon agreed case, 388. Answers in injunction proceedings as evidence, 957. 1C 95 INDEX. INNOCENT PURCHASER. Defense taken by answer in equity pleading, 880. INSTRUCTIONS. Instructions, etc., during recess, 246. INTERVENTION. In admiralty cases, 288. ISSUE. Issue in admiralty cases. See ADMIRALTY. JOINDER. Joinder oj rem and personam proceedings in admiralty. See ADMIRALTY JOINDER OF ACTIONS. At common law. States adhering to common-law practice, 163. Joinder of actions dependent on form, 164. Artificial distinctions, 164. Single cause of action, 165. Illustrations of single cause of action, 165. Inconsistent cause of action, 166. Illustrations of inconsistent causes of action, 166. Different plaintiffs, 166. Breach of contract and rescission, 166. Breach of warranty and fraud, 167. Actions brought by means of the action of debt, 167. Action on the case with count in assumpsit, 168. Count in case, 168. Debt and assumpsit, 168. Debt and detinue, 168. Trover and case, 168. Actions in trespass, 169. Trespass and case, 169. Trespass and trover, 169. Causes of action enforceable in assumpsit, 169. Covenant and assumpsit, 169. Tort and assumpsit, 169. Assumpsit and trover, 169. Warranty and fraud, 169. Tort and contract connected, 169. Actions ex contractu and ex delict o, 170. Cases in tort and contract illustrated, 170. Trespass and trespass on the case ; distinction abolished, 170. Actions on statutes giving penalties, 171. Actions touching real estate, 173. Statement of cause in different forms, 174. Slander and malicious prosecution, 174. Certiorari and mandamus, 174. Two counts in replevin, 174. Inconsistent counts, 175. Actions at law and suits in equity, 175. Joinder of actions in Louisiana, 176. Actions brought in representative capacity, 177. Actions by executors and administrators, 177. Action against executor. Count charging him personally, 178. In equity. Joinder of different causes of action in equity, 180. Under the codes. States having codes of procedure, 180. Provisions of different codes, 180. Causes arising out of same transaction, 181. Single cause of action, 183. Inconsistent causes of action, 183. Two kinds of relief, 183. Person and property injured by same negligent act, 184. Adjacent landowners claiming damages in solido, 184. Meaning of term "transaction," 185. Damage to land and personal injury, 186. 1096 INDEX. JOINDER OF ACTIONS. Under the codes Continued. Injuries to real property and other causes, 186. Equitable remedies touching land, 187. Execution of new deed and possession of land, 187. Inclination to segregate real-property cases, 188. Action to declare a trust, to recover purchase-money, and for pos- session, 188. Assault and battery and slander, 188. Actions for warranty and for fraud. 189. Person and property injured by same negligent act, 189. Multifariousness, 189. False imprisonment and malicious prosecution, 189. False imprisonment and slander. 189. Transaction must give causes of action in same right, 190. Rule in California as to "same transaction," 190. Harboring wife and conversion, 190. Unlawful acts by officer and his deputy, 190. Illustrations of causes of action arising out of same transaction, 190. Actions to recover penalties, 191. Actions on judgments, 193. Actions for injuries to character, 193. Causes of action ex delicto and ex contractu, 194. Determining whether action is ex contractu or ex delicto, 194. Cases involving conversion of property, 195. Illustrations of proper and improper joinder of actions ex contractu and ex delicto, 196. All causes of action arising ex contractu, 198. Actions for injuries to property, 199. Divorce proceedings, 199. Actions to recover real property, 200. Joining partition suits with other matters, 202. Action to correct deed and for partition, 202. Action to declare resulting trust and for partition, 202. Action for partition and for rents and profits, 203. Action for recovery of real property and for partition 203. Foreclosure proceedings, 203. Action to enforce trust and for partition, 203. Action for partition and to quiet title, 203. Action on note and for foreclosure, 204. Action for foreclosure and to set aside deed, 204. Joinder of actions for torts, 204. Actions for tort and for injunction, 204. Illustrations of different actions for torts which are joinable, 204. Action of replevin and action upon contract, 205. Actions for foreclosure of mechanic's lien and actions on other claims, 205. Actions for forcible entry and detainer, 206. Certiorari proceedings, 206. Mandamus proceedings, 206. Joinder on the principle of complete relief, 206. Illustrations of matters properly joinable under the doctrine of full relief, 207. Legal and equitable relief asked, 208. Attacking deed on both legal and equitable grounds, 208. Causes of action must exist at time of commencement of suit, 209. Cause of action must affect all parties alike, 209. Joinder of husband and wife, 210. Persons sued or suing in representative capacity 210. JOINDER OF DEFENSES. See ANSWERS IN CODE PLEADING. 1097 INDEX. JOINDER OF PARTIES. Misjoinder and Non-joinder of parties as ground for plea in abatement. See ABATEMENT. JOINT ANSWERS. See ANSWERS IN CODE PLEADING. JOINT DEFENSES. See ANSWERS IN EQUITY PLEADING. JURAT. To affidavits. See AFFIDAVITS. JUDGES. Power to take affidavits, 329. JUDGMENT. Judgments on determination of picas in abatement, see ABATEMENT. JURISDICTION. Jurisdiction dependent on amount in controversy. See AMOUNT IN CON- TROVERSY. Pleas in abatement to the jurisdiction. See JURISDICTION. Jurisdiction of equity in actions for accounting. See ACCOUNTS AND ACCOUNTING. Want of jurisdiction. Taking objection by answer in equity, 883. Taking objection to jurisdiction by demurrer, 4. JUSTICES OF THE PEACE. Jurisdiction dependent upon amount in controversy. See AMOUNT IN CONTROVERSY. Adjournments, 247. Power to take affidavits, 329. Power to allow amendments, 508. JUSTIFICATION. As new matter in code answers, 845. LACHES. In admiralty causes, 287. Laches of applicant for leave to amend, 522. Defense taken by answer in equity pleading, 880. LEGAL CONCLUSIONS. Denials of legal conclusions. See DENIALS. Plea of accord and satisfaction, 80. LIBEL. See ADMIRALTY. LIBEL AND SLANDER. What may be proved under general denial, 827. What defenses may be pleaded with general denial, 858. Denials as negatives pregnant, 799. Single cause of action for same slander, 162. Joinder of actions for injury to character, 193. Joining actions of slander and malicious prosecution, 174. Joining actions for assault and battery and for slander, 188. Mitigating circumstances, without confession, 832. LICENSE. As new matter in code answers, 848. LIENS. As new matter in code answers, 850. LIMITATION OF ACTIONS. W T hen is an action commenced. See ACTIONS. In admiralty causes, 287. What may be proved under general denial, 826. Manner of pleading. When set up as new matter, 836. As new matter in code answers, 846. Joinder of other affirmative defenses, 859. Defense taken by answer in equity pleading, 880. LIMITATION OF LIABILITY. In admiralty cases, 293. 1098 INDEX. MALICIOUS PROSECUTION. Single cause of action for one offense, 162. Joinder of actions for slander and for malicious prosecution, 174. Joinder of actions for false imprisonment and for malicious prosecu- tion, 189. What may be proved under general denial, 823. MANDAMUS. Mandamus as special proceeding, 113. Joinder of proceedings under the codes, 206. Joinder of certiorari and mandamus, 174. Mandamus upon agreed case, 388. Admission of allegations not denied, 796. MARRIED WOMEN. Answers in equity suits, 885. Objection of coverture as a plea in abatement, 9. MECHANICS' LIENS. Additional allowance of costs, 225. Joinder of other proceedings with actions to foreclose lien, 205. MERITS. See AFFIDAVITS OF MERITS OR DEFENSE. MISJOINDER. Method of raising objection. Plea in abatement. See ABATEMENT IN PLEADING. MISNOMER. As a ground of plea in abatement. See ABATEMENT. Amendments in case of misnomer, 535, 536. Amendments of writs or summonses, 663, 664, 665. MISTAKE. As new matter in code answers, 851. Defense taken by answer in equity pleading, 884. MITIGATING CIRCUMSTANCES. As new matter in code answers, 841. MOTIONS. Address of attorneys, 236. NAMES. See AMENDMENTS OF PROCESS. Abbreviations of names. See ABBREVIATIONS. Misnomer. As a ground of plea in abatement. See ABATEMENT IN PLEADING. NE EXEAT. To secure alimony. See ALIMONY. NEGATIVES PREGNANT. See DENIALS. NEW MATTER. In code answers. See ANSWERS IN CODE PLEADING NOTARIES PUBLIC. Power to take affidavits, 329. OATHS. See AFFIRMATIONS. Oath to answers in equity pleading. See ANSWERS IN EQUITY PLEADING. OPEN AND CLOSE. Procedure in admiralty, 274. OVERCOMING ANSWER. See ANSWERS IN EQUITY PLEADING. OVER. Craving oyer on plea in abatement for variance, 20. PARTIAL DEFENSES. As new matter in code answers, 840. PARTIES. Raising objection by plea in abatement. See ABATEMENT IN PLEADING Parties to agreed case. See AGREED CASE. Real party in interest. How objection taken, n. 10 99 INDEX. PARTIES Continued. Proper parties in equity suit for accounting, 104. Amendments in respect of parties, 535-546. PARTITION. Partition proceedings as an action, 113. Joining partition suits with other matters, 202. Additional allowances of costs, 213. PARTNERS. Objection to non-joinder of. Plea in abatement, 16. Showing partnership under general denial, 16. Non-joinder of partners as plaintiffs, 16. Plea of non-joinder. Proving knowledge of partnership, 16. Parties in suit for partnership account, 104. Partnership accounting. Representatives of deceas :d partners as parties, 105. Affidavits by partnership, 326. Common-law action of account, 85. General denial admitting existence of partnership, 82' PATENTS. Answers in equity patent cases. See ANSWERS IN EQUIT " PLEADING. PAYMENT. Proving payment under general denial 817. Pleading payment as new matter, 833, 842. PENALTIES. Joinder of several actions for penalties, 171. PREMATURE SUIT. Objection as a ground for plea in abatement, 22. PRIZE CASES. See ADMIRALTY. PROBATE PROCEEDINGS. Probate proceedings as an action, 112. PROCESS. See AMENDMENTS OF PROCESS. Process of admiralty. See ADMIRALTY. Defects in process. Taking objection by plea in abate. 'lent, 19. PROHIBITION. Prohibition proceedings as an action, 113. Prohibition upon an agreed case, 388. PUIS DARREIN CONTINUANCE. Matters of abatement arising after issue. See ABATED :NT. QUIETING TITLE. What may be proved under general denial, 826. QUO WARRANTO. Quo warranto proceedings as an action, 113. RATIFICATION. As new matter in code answers, 849. RECESS. See ADJOURNMENTS. RECOGNIZANCES. See APPEAL BONDS. REFEREES. Adjournments by referees, 247. Referees, Amendments by. See AMENDMENTS AT COMMON LAW UNDER CODES AND STATUTES. REFERENCES. References in admiralty causes, 275. RELEASE. To be specially pleaded, 849. Plea of release joined with general denial, 858. REPLEVIN. Joining two counts in replevin, 174. Joinder of actions upon contract, 205. What may be proved under general denial, 822. IICO INDEX. REPLICATION. In relation to pleas in abatement. See ABATEMENT. RES JUDICATA. Manner of pleading. When set up as new matter, 836, 843. Defense taken by answer in equity pleading, 882. RESPONSIVE ANSWER. See ANSWERS IN EQUITY PLEADING. SCIRE FACIAS. To enforce decree for alimony, 434. Amendment of scire facias, 670. SEAL. Amendment by affixing seal, 670. SERVICE OF PROCESS. Objections to service as a ground for plea in abatement. See ABATE- MENT IN PLEADING. SERVING ANSWER. See ANSWERS IN EQUITY PLEADING. SET-OFF AND COUNTERCLAIM. Jurisdiction depending upon amount in controversy. See AMOUNT IN CONTROVERSY. Defense taken by answer in equity pleading, 884. SIGNATURES. See AFFIDAVITS ; ANSWERS IN EQUITY ; APPEAL BONDS. SLANDER. See LIBEL AND SLANDER. SPECIFIC DENIALS. See DENIALS. SPECIFIC PERFORMANCE. One cause of action cannot be split, 162. SPECIAL PROCEEDINGS. Special proceedings distinguished from actions. See ACTIONS. SPLITTING CAUSES OF ACTION. See ACTIONS. STATUTE OF FRAUDS. What may be proved under general denial, 827. As new matter in code answers, 847. Manner of pleading. When set up as new matter, 837. Defense taken by answer in equity pleading, 882. STATUTE OF LIMITATIONS. See LIMITATION OF ACTIONS. STAY. On the ground of pendency of another suit. See ANOTHER SUIT PENDING. Staying of one suit in admiralty until hearing of another, 258. STIPULATIONS. See ABIDING THE EVENT. Stipulations for agreed case. See AGREED CASE. Stipulations for costs in admiralty. See ADMIRALTY. Stipulations for additional allowance of costs. See ADDITIONAL ALLOW- ANCE OF COSTS. SUBMISSION OF CONTROVERSY. See AGREED CASE. SUIT MONEY. See ALIMONY. SUMMONS. Amendments of summons. See AMENDMENTS OF PROCESS. Address of attorneys, 236. SUNDAY. Additional instructions on Sunday, 246. SUPERSEDEAS. Supersedeas bond, 965. SUPPLEMENTARY PROCEEDINGS. Supplementary proceedings as an action, 115. INDEX. SUPREME COURT OF THE U. S. As a court of admiralty, 252. TENDER. To be specially pleaded, 849. TERM. See ADJOURNMENTS. Additional term, special term, and adjourned term, 238. Whole term as one day, 240. Day adjourned to as first day of term, 241. Term cannot be reopened after final adjournment, 243. Adjourned term. New special term, 244. Presumption as to whether special or adjourned term, 245, TORTS. Single cause of action for same tort, 159. TRESPASS. Separate causes of action for trespass, 161. Joinder of actions of trespass and case, 169. Distinct actions of trespass may be joined, 169. TRIAL. Trial of admiralty cases. See ADMIRALTY. Instructions, etc., during recess, 246. TROVER. Joinder of trover and case, 168. What may be proved under general denial, 821. UNDERTAKING ON APPEAL, See APPEAL BONDS. UNDUE INFLUENCE. Defense taken by answer in equity pleading, 882. UNITED STATES COURTS. See ADMIRALTY. USURY. Manner of pleading. When set up as new matter, 835. To be specially pleaded, 850. Defense taken by answer in equity pleading, 878. VARIANCE. Objection as a ground for plea in abatement. See ABATEMENT IN PLEAD- ING. VENUE. Venue of affidavits. See AFFIDAVITS. Affidavits of merits on change of venue, 355. VERIFICATION. Pleas in abatement, 9, 28. Plea of accord and satisfaction, 76. Libel in admiralty suit, 255. Answers in admiralty, 272. Verified answer equivalent to affidavit of merits, 342. Amendments to bills in equity, 505. Requisites of affidavit. Waiving pleas in abatement, 29. WARRANTS. Amendment of warrants, 699, 700. WASTE. One cause of action cannot be split, 162. WORDS AND PHRASES. ' Action," no. ' Adjourned," 238. ' Adjournment," 238. ' Cause," no. ' Cause of action," 116. 'Commenced," 119. ' Difficult and extraordinary cases," 226. ' Involved." 233. ' Prosecution with effect," 984. 1 102 INDEX. WORDS AND PHRASES Continued. " Rising of court," 988. "Same transaction," 181. " Session," 240. "Special proceedings," 112. " Stage of the case," 618. " Suit," no. " Term," 240. " Transaction," 185. "Whilst the cause is in progress," 619. WRITS. Amendments of writs. See AMENDMENTS OF PROCESS. WRIT OF ERROR. In agreed cases, 403. 1103 V3fl wc '~'n'NM- *- v7 ^* UC SOUTHERN REGIONAL LIBRARY FACILITY A 000778113 1 UNIVERSITY of CALIFORWA uES LIBRARY